Opinion by
Judge Pryor:This court, in the case of the L., L. & F. Railroad Company v. Case’s Admr., in an opinion delivered during the present term, adjudged that the plaintiff, in an action like this, when it was alleged that the injury resulted from the willful negligence of the company, was entitled to recover for ordinary neglect. It is alleged that the plaintiff’s intestate was not in the employ of the appellee at the time of the alleged injury, and therefore a recovery could have *576been had under either section of the statute when the facts authorized the finding. It is not proper that we should discuss the effect of the testimony, as the case must go back for further trial, being well satisfied that the facts should have gone to the jury. The judgment of the court below is, therefore, reversed, and the cause remanded with directions to award the appellant a new trial and for further proceedings consistent with this opinion.
Mundy, for appellant. P. F. Green, for appellee.