The opinion of the court was delivered by

The principal contention in this court is that there is no proof that Love was killed by the low bridge over Appanoose creek; that the plaintiff’s case rests wholly on unwarranted presumptions of fact. With this contention we do not agree. All the circumstances indicate that the right side of Love’s head struck the first lateral of the bridge at the place where the soot was brushed off; that the contusions were caused thereby and produced his death. No other adequate cause for the wound on his head and the mark on the bridge is shown. The claim that the *39mark on the bridge was caused by the same thing that made marks on the under side of many of the overhead pieces and tore out the west one is contrary to the evidence. George Ripper testified that he examined the marks ; that the marks extending across the bridge were alike., as if some machine had struck them, but that the one on the east side was different. The suggestion that Love might have met his death from other possible causes was one which might properly be urged before the jury, but reasonable men would not be very likely to indulge in fanciful speculations when a plain, adequate and reasonably certain cause of death was so clearly shown as in this case ; and we think the contention of counsel for plaintiff in error on the facts of the case is utterly without force.

Complaint is made of rulings on the admission of testimony, but we find nothing substantial in any of the objections urged, or worthy of comment. Complaint is made of the. instruction of the court to the effect that slight negligence on the part of the plaintiff would not bar a recovery if the defendant was guilty of gross negligence. The instruction on this point is substantially the same given in the case of A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491. But in this case there could be no possible error in giving the instruction for the reason that there was absolutely no proof of negligence on Love’s part. He had never been informed in any manner that there was a low bridge across Appanoose creek. He had never passed over the road in the performance of his duties as brakeman, except in the night-time, and it is not shown that he ever had an opportunity to observe the height of this bridge. This particular night on which he met his death was dark and cloudy. The jury would not have been warranted in finding that he was *40guilty of contributory negligence barring a recovery. On the other hand we are not prepared to say that the defendant was not guilty of very gross negligence in continuing to maintain for so manji years a low bridge, over which it operated trains with furniture- and other cars so high that a bralteman could not stand upon them and pass through the bridge in safety. Such structures have been strongly condemned by this court in prior cases, and if railroad companies will persist in maintaining them to the imminent peril of the lives of their employees, who are engaged in a service; whose necessary hazards are so great, it does not seem any hardship to require them to respond in damages to the families of those who are killed thereby.

The judgment is affirmed.