delivered the opinion of the court.
1. The congested condition of the docket of this court precludes us from any extended discussion of the facts upon which counsel for defendant predicates the contention that a nonsuit should have been granted by the court below. We have carefully considered the evidence and do not agree with counsel in their contention that the physical facts so contradict the testimony of witnesses that the latter should be rejected as a matter of law. Much of this testimony related to the speed of the train, the opportunity that plaintiff had of observing its approach and protecting himself from danger by the exercise of ordinary care. Upon all these matters we think the plaintiff introduced sufficient testimony to make a case for a jury, and that the court properly refused a nonsuit.
We find one material error, however, which compels us to reverse this case, and that was the refusal to answer the question propounded by the jury. This action was predicated upon the alleged negligence of defendant in two particulars: (1) Running at an unusual and unlawful rate of speed; (2) failing to give warning by ringing the bell or blowing the whistle. No question of posting notices or warnings at or about the steps was involved, *352and as a matter of law none were necessary. The track itself is a sufficient warning of danger. When the jury came in and asked whether it was unlawful or a presumption of negligence for a railroad company to permit the use by the public of a path or steps leading to its track without giving public warning of danger, they should have been told that, so far as the case at bar was concerned, it was not unlawful and did not in itself create a presumption of negligence.
2. The testimony in regard to defendant’s negligence in other respects was contradictory, and, considering the nature of the question propounded by the jury, this court cannot say whether the finding of negligence, upon which the verdict was predicated, was within the issues made by the pleadings or upon a failure to post notices upon the stairway warning the public to beware of locomotives. The instruction actually given practically left the minds of the jurors in the same condition that they were in before the question was asked, and did not tend in any way to dissipate any erroneous impression which they may have had, and which some of them evidently did have, that a recovery could be had because of the failure of the company to give public warning of danger.
For the reasons above given, the judgment will be reversed, and a new trial ordered. Reversed.