(after stating the facts.') Appellant assigns as error in its motion for new trial the giving of instructions numbered two, four and six, on the court’s own motion. But there were no exceptions saved to the giving of these instructions, and we cannot therefore consider these assignments of error.
Among other requests for instructions asked by appellant and refused by the court was t'he following:
“You are instructed that when the deceased, Benjamin *331Bratton, Sr., approached the railroad track of the defendant, and proceeded to walk on the same, he was bound to exercise ordinary prudence, as was fairly commensurate with the nature of the risk. If he could see for a distance up or down t’he track, he was bound to look to see whether a train was approaching; and if the track could have been seen for only a short distance, he was bound to look and listen for an approaching train or engine; and if you find that by the exercise of these senses he might have avoided the injury, no recovery can be made.” Appellant duly saved its exceptions.
Benjamin Bratton, an aged man, on the night he was killed had been a passenger on appellant’s train from the town of Marshall to the town of Leslie, in Searcy County. He debarked from the train at the depot at Leslie, and was walking along the track of appellant going toward Leslie. There was to be a public speaking at Leslie, and many passengers had gone down to Leslie from Marshall to attend the speaking. The town of Leslie was some distance from the depot of appellant. The passengers when they arrived at the depot usually went along the track of appellant in going to the town of Leslie. That had been the custom since appellant’s road had been built. The roadbed and dump of appellant extended to a certain creek between the depot and the town, and a bridge over that creek that foot travelers crossed extended part of the way on the dump of appellant’s roadbed. The evidence was abundant to show that Bratton on the night in question was going along the way that passengers had been accustomed to go over appellant’s track, with its knowledge and apparent acquiescence, since the building of its road. The jury therefore were warranted in finding that Bratton was on the track of appellant at least by sufferance, if not by implied invitation, and that he was not a trespasser. See Garner v. Trumbull, 94 Fed. 323, and cases cited.
It was the invariable rule, as shown by witnesses for appellant, for the engine, after arriving at the depot, to go down to the water tank, and it did on this occasion as it had always done. But it appears, from the testimony of one of the witnesses for appellant, that there was reason for the conclusion or belief on the part of those who were walking on the track *332that the engine had already been down to the water tank, and that it would not again run over the track in the direction the travellers were going at the time Bratton was killed, for one witness of appellant testified as follows: “The train had gone down and up there on the side track, and stopped. As the train came back, the old man (Bratton) was in the middle of the track, and I said “Look out!” He stepped off, and the train went on the siding. I got on the track again, I heard the train, and I looked back, and it was coming. We had got right there at the switch, and the shadow of the tank was there. The old man stepped on to the main line, and went into the shadow of- the tank, about the same time, and I do not know whether the train hit him or whether he got his foot across the bar and fell down. The engine came very near hitting me. The bell was ringing before the engine started, and that was what caused me to look around.” The witness was asked this question: “How close was the engine to him when you first saw him? Point out your positions on this map?” Answer. “(Indicating on the map.) It was my understanding that the train was going to stay there on that siding. T heard the engine bell ringing, and the' exhaust at the same time, and I looked around, and saw it coming right close to me. I stepped off right quick, the old gentleman was right close to me. He stepped on where the tank makes a shadow. I do not know how it happened. I do not know whether it knocked him down or he fell down.” Question (Handing witness paper.) “Point out where you were.” Answer. “We stepped off right along here somewhere” (indicating). “After it went on the siding, we continued our walking along here. Right there is where he fell down or the engine knocked him down,” etc. Again 'this witness was asked, “How far is it from the depot to the switches?” and afnswered': “One hundred and fifty or two hundred yards.” Q. “After the train left the depot to pull down to the switch, you and Mr. Bratton, I believe you said, started down the track, following after the train. Now, then, the train had to go 200 or 300 yards to the switch. What did they do after they got down there?” Answer. “I was not acquainted with their manner of doing. I thought they were going to the tank to get water.” Question. “They were not going to *333back the train in there? Answer. “Yes, sir; it was my belief that when they went back on the side track, there was where they would stay the balance of the night.”
We are of the opinion, from this testimony, that it was not proper for the court to tell the jury, as matter of law, that it was the duty of Bratton to look and listen. It was rather a question for the jury to say, under the circumstances, whether it was the duty of Bratton to look and listen. It appears from the testimony of the witness just quoted that the impression was made on his mind that the engine had retired, so to speak, for the night when it backed in on the Y or “siding.”' The same impression was doubtless made upon Bratton. At least, the jury might have so found. And, in the light of this evidence, it is impossible for us to say that the impression was not well founded. The record shows that a map or plat was used to explain the situation, distances, etc. The witnesses used this map or plat in giving the jury a detailed statement of the surroundings of Bratton at the time he was killed. That map has not been brought into the bill of exceptions, and is not in the record. So a material part of the evidence upon which the instructions were based, and the verdict was grounded, is not before us. The court did not err in refusing the instruction. The case, on the facts, is not like the cases of St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 13; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; Little Rock & Ft. S. Ry. Co. v. Blewitt, 65 Ark. 235, where it is held under the facts there presented that it was the absolute duty of the party injured to have looked and listened. The case at bar is more like the case of Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 137, and the principle there announced controls here. Where the circumstances were such that one of ordinary prudence might not expect a train to pass at that moment, it is a question for the jury to determine whether or not he has been guilty of contributory negligence. See Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55, where exceptions are recognized to the general rule; Ferguson v. Wisconsin Central Ry. Co., 63 Wis. 145.
It is unnecessary for us to discuss in detail the question of *334the negligence of the appellant and the contributory negligence of Bratton. It suffices to say that we have carefully considered the record bearing upon these questions, and we find no error in the instructions of the court. They were properly submitted. There was sufficient evidence to support the verdict of the jury, and to make these jury questions. There was also evidence to sustain the finding that Bratton was conscious after his injuries, and that he endured intense pain. The amount of the verdict is not questioned.
The case, so far as this record discloses, was properly tried, and the judgment is therefore affirmed.