Two grounds for new trial are, that the verdict is contrary to the following instructions contained in the charge of the court: “ If you believe from the evidence that the defendant was negligent, but believe further that plaintiff' by ordinary care could have avoided the consequences to himself caused by defendant’s negligence, he is not entitled to recover, unless the injury was inflicted by defendant wilfully and wantonly, or unless, defendant’s negligence was so gross as to amount to or be equivalent to wantonness or recklessness. If the use of the track by pedestrians with the knowledge of the company amounts to a license at all, it must be on condition that persons so using the same shall exercise ordinary diligence themselves so as to avoid being injured by the company’s trains.”The other grounds are, that the court erred in refusing to give the following instructions : “ The engineer of a railroad train, seeing a grown man ahead of him on the track, and not knowing that he labored under any infirmity, has a right to assume that he will get off in time to save himself. The requirements of blowing the whistle, ringing the bell and checking the speed are not for-the protection of persons using the track as a thoroughfare in its length and not in crossing it.”J. B. Cumming, J. A. Billups and Bryan Cumming, for plaintiff in error.Calvin George, contra.
