dissenting. It is not claimed by plaintiffs *591in error that there was any error sufficient to reverse the judgment unless the court below should have taken the case from the jury on account of contributory negligence.
This negligence is claimed to have consisted in going upon the track when the train was approaching without taking any pains to see that it was coming.
The plaintiff testifigd that he did not see it and did not hear it, and that he looked down the track. The locomotive had no head-light except an ordinary lantern, and was running at a rate of thirty miles an hour. There were two other tracks of different roads within a short distance and parallel to the track of defendant. I am not prepared to say that a person standing near a track is negligent in not expecting a train when he can neither see the head-light nor the rear lights which are universally used, and which are the only means generally available of discovering an advancing or backing train in the darkness. "While under all the circumstances a jury might have been justified in finding there was negligence in fact, yet it seems to me the question was one on which they had a right to pass. We cannot hold there was negligence as matter of law if there was any testimony on the subject which was open to consideration. I think there was such testimony, and that the case was properly submitted.