delivered the opinion of the court:

In looking carefully through the papers in this case since the argument, I see no error in this ruling of the law by the justice presiding at the trial of this cause prejudicial to the plaintiff. If the judge committed any error in the conduct of the trial, it was in failing to instruct the jury to render a verdict for the defendant upon the ground that the plaintiff was guilty of gross negligence in voluntarily placing himself upon the track before an approaching railroad engine, by which he was run over and injured. What constitutes negligence usually is a mixed question of law and fact. But sometimes negligence is of a character so gross, that a judge may well instruct a jury that the plaintiff is not entitled to recover, and I think the undisputed fact of this case would render it eminently proper to give such direction.