¶1The judgment herein must be reversed for error in withdrawing the case from the jury and giving judgment ior defendant.
¶2There is evidence tending to show negligence on the part oí the company in Jailing to stop the train; a conflict as to the distance within which it could have been stopped, etc.
¶3There is also evidence on the question of the negligence of the decedent which should have been submitted to the jury, whether by the use of his faculties under all the circumstances he could have avoided the injury.
¶4The decedent does not seem to have been a trespasser. Long use of the crossing and the permission to some one to construct and maintain a footway across the track or the construction and maintenance of the same by the company itsell (which does not appear) implies a license to foot passengers to cross the track at that point. The right of the parties are, therefore, not to be determined by the same rule which would apply in case the deceased was a mere trespasser. Whether he was a trespasser was a question that should have been submitted to the jury.
¶5The undisputed facts do not show negligence of the deceased contributing to the injury, and there is evidence tending to show negligence of the company.
¶6Reversed and new trial granted.