dissenti/ng. — I am unable to concur in the foregoing opinion, and will briefly present the grounds of my dissent.
e. railroads: desirians. I. License to use the track of a railroad by footmen unquestionably may be inferred from acquiescence in long use in that way by the public, with the knowledge of the corporation operating the cars used thereon. Evidence of this character is sufficient in this State to establish the existence of a way by prescription or dedication. Onstott & Edwards v. Murray, 22 Iowa, 457. Such evidence will certainly support a presumption that the use in the case under consideration was with permission of the defendant. Donaldson v. The M. & M. R. R. Co., 18 Iowa, 280; Evans v. The B. & M. R. R. Co., 21 Iowa, 374.
If the deceased was upon the railroad track with permission of defendant, he cannot be regarded as a trespasser, and defendant was bound to exercise its right in using the track with a view to the safety of deceased and others who, acting upon the permission given them, were in the habit of using the track as a foot path. If defendant did not intend to use proper care for the safety of such persons, it was required to forbid such use, and take proper steps to notify all concerned. Humanity demands such a course. It would neither be *547oppressive nor unreasonable. If defendant’s business is of such a character that it cannot permit persons to walk upon its track,.and use proper care for their safety, no one can complain, if forbidden to do so. It is simply the exercise of the-right of the owner in the use of his property. While permitting the use of its track by. pedestrians, defendant must be held to the exercise of its rights under restrictions that will secure their safety. Kay v. Pa. C R. R. Co., 65 Penn. St., 269; S. C. 3 Am. R., 628.
These .views are applicable to the first point discussed in the foregoing opinion. While I agree with the conclusion reached, I think it is better supported upon the reasons above presented.
II. The last paragraph of the first point of the opinion, in my judgment, announces a doctrine that is unsound.
If defendant was required to use its track at the place where the accident occurred, in a manner consistent with the safety of footmen permitted to go upon it, I do not think the law requires increased care on the part of such persons to -avoid accidents which might result from defendant’s manner of using the road inconsistent with safety of pedestrians. That is, the deceased was not bound to use such degree of care as would be required in order to avoid the accident, if it resulted from defendant’s unlawful irse of the road. And such use would be unlawful if it was not consistent with the safety of footmen, on the track" under defendant’s permission. The deceased was authorized to rely upon defendant performing its lawful duty and was not required to exercise diligence or care with a view that such duty would be neglected.
*5488. practice : siruotion.111" *547III. The second point of the opinion involves certain instructions in regard to the care defendant was bound to exercise at the crossings of streets and alleys used by the public. It is not claimed -that they are wrong in principle, but it is insisted that they are inapplicable to the facts proved, and are based upon a hypothetical case which was clearly negatived by the evidence. In other words, that the evidence shows the accident happened at a point not on the alley or street. There is no contest in the proof as to the fact that the place where *548deceased, fell was not iix the alley. It was very near thereto, }he distance bnt a few feet in the direction decedent was walking. There is evidence tending to show that the deceased walked a short distance, a step or two, before he fell after being struck, and that the precise point where he came to the ground was not on the embankment. This evidence, together with the height of the embankment, considered in coixnection with the momentum imparted to deceased by the car, certainly tended to show that deceased was struck at the alley. It cannot be said that there was no evidence upon this point. The instructions, therefore, were not irrelevant. But should we conclude that there was an utter absence of evidence to support the view that deceased was struck at the alley, defendant cannot be permitted to object now to the instruction in question on the ground of irrelevancy, for the reason that instructions asked and given in its behalf contemplated a conflict of evidence on this point and submitted the determination thereof to the jury. The court could well consider the point of fact a disputed one, when it was so regarded by defendant, and the judgment cannot be reversed for an error into which the court was led by appellant. Smith v. S. C. & P. R. Co., p. 173, ante. The defendant may complain of the jui’y’s finding of faét under this instruction, but not of the instruction itself.
IY. The third point in my opinion is also based upon a misunderstanding of the record. .
The x’ule of contributory negligence was cleax’ly and explicitly given iix sevex*al sepai’ate instructions asked by plaintiff, and in the 10, 12 and 14, asked by defendant, and probably in others. Those asked by defendant present the rule as fully and eleai’ly as it can be stated, and without connection with any other pxinciple that might lead to a misunderstanding on the part of the jury. They seem to have beeix drawn by defendant’s counsel, for the purpose of presenting the rule clearly to the jury, and in my judgment that object was fully attained.
9 railroads* negiigence. But the rule of the instruction condemned in the opinion is an exception to the doctrine of contributory negligence, and therefore the jury could not have been *549misled, even though they had no instructions as to that doctrine. It is now the settled English rule, which is adopted generally in this country, that “ the plaintiff may recover, notwithstanding his own negligence exposed him to the injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.” Shearman & Eediield on Negligence, §§ 25, 26, 36; Sanders on Negligence, pp. 55-6. The instruction is to the effect that if defendant’s employes saw deceased on the track when the car was approaching him, knew of his danger and could, by the exercise of reasonable care and prudence, have avoided the danger and the accident occurred from such failure on their part, the defendant is liable; and the court might have added, even though the deceased was negligent.
The rule of the instruction, regarding it as contemplating the negligence of the deceased, is approved by Christianity, humanity and common sense, whose principles my judicial duties by no means require me to ignore. It was pertinent to the facts of the case, and was therefore properly given to the jm7-
V. I do not think the remarks'in the fourth paragraph are justified by the record, for I believe that the verdict is well supported by the evidence, and is not in conflict with the instructions, taken as a whole. The instruction quoted in this paragraph is clearly erroneous, in that certain acts of deceased are declared as a-matter of law to be negligence. The negligence of deceased was a matter for the jury to determine, and not for the court; other defects could be pointed out.
In my opinion the verdict under the instruction referred to in the preceding paragraph, could not have been for defendant, certainly it is not without the support of evidence, and in no other case can it be disturbed.
My convictions are clear and positive that the judgment in this case ought to be affirmed.