(dissenting. — I do not agree with the majority in what is said in the second division of the foregoing opinion. I‘t seems to be assumed that the instruction-treated of was given as a conclusion based upon all the evidence in the case; but this is not correct. The instruction,. ■ in its material part, is as follows: “One riding on a railroad car is presumed, prima facie, to be there lawfully, having paid, or being liable when called on to pay, his fare; and where one enters a railroad car in good faith, for the purpose-of taking passage thereon, in a train carrying passengers, intending to pay his fare when called upon, he becomes a passenger, though no fare has in fact been paid.” Following this, and in the same paragraph of the charge, it was left to the jury to say, under proper directions, whether this-presumption was rebutted on overcome by the facts disclosed in evidence, as to the character of this train, so far as known to Fitzgibbon, and the circumstances under which he took passage. The instruction is sustained by authority. Fetter Carriers of Passengers, 1195; Creed v. Railway Co., 86 Pa. St. 139; Railway Co., v. Books, 57 Pa. St. 339; Dewire v. Railway Co., 148 Mass. 343 (19 N. E. Rep. 523); Whitehead v. Railway Co., 99 Mo. Sup. 263; 6 L. R. A. 409 (11 S. W. Rep. 751). The ease will have to be reversed for the error-in submitting to the jury the issue of gross negligence, but in all other respects I think the action of the trial court was correct.
PobiNson, C. J., concurs in this dissent.