1. A charge the effect of which was to instruct a jury that it was an open question for their determination whether or not, upon a given state of facts, a railroad company had exercised due diligence, was erroneous whjn, upon that state of facts, it was manifest, as matter of law, that the company had exercised due diligence.

2. The evidence showed that the plaintiff’s mule was killed by the running of the defendant’s train, and thereupon the legal presumption arose that the defendant was negligent; but as this presumption was fully and completely rebutted by uncontradicted evidence, the verdict was wholly unwarranted, and therefore contrary to law.

Judgment reversed.