*720ON MOTION FOR REHEARING.
In the motion for a rehearing counsel insist that there was such a conflict in the evidence, both in reference to the question whether the deceased was drunk and voluntarily went upon the track in this condition and the question whether the company knew of the prior use of the track as a footway, as to demand the submission to the jury of the question whether the deceased was guilty of such gross negligence as to prevent a recovery. For the purposes of this case'it may be conceded that counsel have correctly apprehended the evidence and that the court was wrong in stating, in the original opinion, that the evidence was undisputed that the deceased, in a drunken condition, lay or fell down upon the track, and that there was no evidence that the company knew of the use of the track as a footway. Let it be conceded that the deceased was not drunk. It is utterly immaterial how he came to be upon the track, so long as the company’s employees had nothing to do with his presence there and did not discover him in time to avoid killing him. Let it be admitted that the deceased was not at fault and that the company was bound to look out for him. His widow must recover, •if at all, not because her husband was free from fault, but because the company was negligent. In what does the negligence consist? The engineer was on the lookout. He could not have been more diligent in this respect if he had anticipated the presence of the deceased. Surely counsel do not mean to contend that the train must creep along at 111 points on the track where pedestrians have, without the company’s permission, previously used the track longitudinally as a footway. The engineer had his eyes open and his vision riveted upon the track. He saw what he thought was a cross-tie. He had no reason to suspect it-was anything else. We can not agree, as counsel contend, that that jury could arbitrarily say the engineer had no right to assume the object was inanimate, but that, in the exercise of ordinary care, he could have known it was a man. He says he was honestly mistaken — that he used his eyesight, and that he had no reason to believe the object was other than he first thought it to be. There is nothing to dispute this testimony. The company was not negligent, and the plaintiff was not entitled to recover even though her husband was. wholly free from fault. Motion denied.