Plaintiff sues for injury to his horse, buggy and harness. A demurrer to his testimony was sustained and he comes here for relief.
From the record presented we have concluded that the trial court erred in taking the case from the jury. There is strong testimony showing contributory negligence, but all the testimony is not of that kind. If the testimony of plaintiff himself is to be believed, he should recover. He states that before crossing the tracks he checked his horse to a slow gait; that he looked and listened; that, while he did not stop,, his team, yet the buggy was making no noise, and did not prevent his hearing all he could have heard if he had come to a full stop. ■ The injury and the defendant’s negligence is conceded; the testimony strongly preponderates against plaintiff on his contributory negligence, but not altogether so. We will reverse the judgment, and remand the cause that plaintiff may take the verdict of a jury on his case.
All concur.