dissenting.
I agree with the conclusion of the majority opinion that there is no evidence in the record before us that the plaintiff’s decedent was guilty of contributory negligence. Hence it was reversible error to have given any instruction on that subject.
*686The evidence related in the majority opinion convicts the defendant of gross negligence. But there is in the record other evidence, not inherently incredible, and which, if believed by the jury, absolved him of that charge. Therefore, in my opinion, it is a question for a jury and not for this court to say whether or not the defendant was guilty of gross negligence under all of the facts and circumstances of the case.
I think the judgment should be reversed and the cause remanded for a new trial both as to the defendant’s liability and the quantum of damages.