(after stating the facts). First. The appellee contends that there is no exception to the ruling of the court in refusing a new trial. The record order on this point is as follows : “At a former day of the present term of this court, the plaintiff filed motion for a new trial of the cause herein, and, the same being this day submitted to the court for its consideration and judgment, and the court, being well and sufficiently advised, doth refuse the prayer for a new trial, the plaintiff at the time having prayed for an appeal to the Supreme Court, which is by the court granted, and plaintiff given ninety days to prepare and file his bill of exceptions.” We are of the opinion that this order, showing that the court refused the prayer for new trial and that the plaintiff at the time prayed for appeal to the Supreme Court, necessarily shows by implication, at least, that the plaintiff excepted to the ruling of the court in refusing his motion for new trial. The prayer for the appeal following the ruling in the same order, and from the ruling, was tantamount to an exception to the ruling.
Second. The court erred in refusing to allow witnesses to answer the questions propounded by appellant. If appellee permitted its roadbed to obstruct the natural drainage of water from the street, so that it overflowed and washed away the sidewalk, and thus compelled footmen to use the railroad track as a “toe-path,” instead of the sidewalk, and if this use of the railroad track by the public as a highway was so general, long continued and oft repeated that the' appellee must have known thereof and acquiesced therein, then such use by appellant at the time of his injury would be permissive and constitute him a licensee, instead of a trespasser. Gulf, C. & S. F. Ry. Co. v. Matthews, 66 S. W. 588, 24 A. & E. R. Cas. (N. S.) 580; Connell v. Chesapeake & O. Ry. Co., 19 A. & E. R. Cas. (N. S.) 236; Davis v. Chicago & N. W. Ry. Co., 15 A. & E. R. Cas. 424; Morgan v. Wabash R. Co., 20 A. & E. R. Cas. (N. S.) 372; Penn. Rd. Co. v. Hammill, 24 L. R. A. 531; Anderson v. Chicago, St. P., Minn. & O. R. Co., 23 L. R. A. 203; Ward v. Southern Pac. R. Co., 23 L. R. A. 715.
The questions propounded by appellant to the witnesses were calculated to elicit testimony which would tend to show that the public was using the railroad track as a highway by at least the implied invitation or permission of appellee. The questions were therefore relevant, and pertinent to the issues of negligence and contributory negligence which were raised by the pleadings. The court should have permitted a thorough investigation along this line, but instead precluded by its rulings any inquiry that would develop the facts showing appellant- to have been a licensee, even if such facts existed.
The appellee relies upon the cases of St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513; St. Louis, I. M. & So. Ry. Co. v. London, 82 Ark. 267, and Adams v. St. Louis, I. M. & So. Ry. Co., 83 Ark. 300, to establish that appellant was' a trespasser, even if the facts were proved as he proposed. But in none of these cases was there any evidence tending to show that the railroad track had been used so openly, constantly and continuously by the public as a highway that the railway company must have known of and acquiesced in such use. The facts which appellant proposed to prove, if established, would make the case similar, in these respects, to that of Missouri & N. A. Rd. Co. v. Bratton, 85 Ark. 326.
For the error of the court in refusing to permit the witness to answer the questions propounded by appellant and in refusing the offered evidence and m directing a verdict for appellee, the judgment Is reversed, and the cause is remanded for a new trial.