Vance

Appeal by defendant from a judgment based upon the verdict of a jury and from an order denying a new trial in an action brought to recover damages occasioned by defendant’s negligence in the operation of its trains.

The proposition is not, and cannot well be, questioned that there is evidence in the record warranting the implied finding of negligence upon the defendant’s part. Appellant, however, contends that the record discloses such contributory negligence upon the part of plaintiff’s servant in charge of the property injured as to preclude recovery.

Upon the trial there was evidence offered by plaintiff tending to show that the servant of plaintiff, standing upon the front end of a wagon, was driving a six-horse team by means of a check-line. The road upon which he was traveling was intended for use in connection with a lime-kiln and was mostly used by those having business at such kiln. It crossed the defendant’s main and side tracks, intersecting the main road which paralleled such tracks. The driver was proceeding with his team from the kiln toward the railroad track, the view along which to the east was entirely obstructed between the kiln and sidetrack. When the lead…