The first five assignments allege error in the answer to-defendant’s points. They were all refused by the learned judge below, for the reason that their affirmance would have-withdrawn the case from the jury. This the court could not properly have done. They were all questions which were for the jury. We do not think the position of brakeman Zink on the car at the time of the accident shows contributory negligence on his part; at least we cannot declare it so, as a question of law; it was for the jury. He was riding as be had often done before; as be had seen others do repeatedly; there was abundant room between him and the lumber piles, and lie had no reason to suppose, he certainly was not bound to anticipate, that the car would become derailed just at that point, and that as the result thereof he would be crushed and killed between the car and the pile of lumber. Nor do we think bo was bound to know tbe unsafe condition of the track. It was not in the line of his duty to see to the track, nor was the defect so palpable that it must have been seen and known by Mm, as was the bridge in Mansfield Coal and Coke Company v. McEnery,
Judgment affirmed.