The facts of this case so far as the questions of negligence and contributory negligence are concerned, are the same as in the case of Toledo, etc., R. R. Co. v. Wingate, decided by the Supreme Court, 37 N. E. Rep. 274. This case and that arose out of the same transactions. The complaint in that case was held insufficient.

There is a slight difference in the allegations in that case and in this; but as the facts are the same, this cause is reversed on the authority of that case, with instructions to sustain the motion for a new trial, with leave to appellee to amend his complaint.