after stating the facts: The Judge closed his charge to the jury in the following words: “The Court further charges the jury that the burden of'showing contributory negligence is on the defendant, and, before the jury can find the second issue in the affirmative, they must be satisfied that the negligence of the plaintiff was the proximate cause of the injury complained of; and the Court instructs the jury, upon the evidence in this case, that, though the plaintiff* may have been negligent in entering upon the track of the defendant, said negligence was not the approximate cause of the injur}' complained of, and the second issue should be answered, No.”

There ivas error in withdrawing the issue involving contributory negligence from the jury, or telling them to respond to it, “No.” If the plaintiff attempted to ride a horse across the track at a point other than a crossing, and the condition *410of the road at the place was such-that he had any reason to apprehend injury to the animal in the attempt to pass over, it was negligence to take it upon the road at all. We have no data upon which to form an opinion other than the fact that the horse was actually injured, and we could not safely determine the. question of negligence solely from the fact of injury ensuing. Nor do we concede the soundness of the position that the plaintiff could not, in any event, recover, because he was a trespasser in attempting to pass at a place other than a crossing. If the facts in reference to the safety of the point selected as a pass-way were in dispute, the jury should have been left to respond, with suitable instruction, to the second issue. 2 Wood’s R. L., §418, p. 1550.

The trespass, if admitted, does not prevent a recovery, if the defendant, by ordinary care, could have avoided the injury. 3 Wood’s R. L, §417, p. 1546, note 137; State v. Bullock (decided at this term).

While it was not essential that there should have been another issue, this case illustrates the importance of adopting the suggestion of this Court in McAdoo v. Railroad, 105 N. C., 140, of submitting to the jury by a separate issue, where it arises^ the question, whether the defendant, notwithstanding the contributory negligence of the plaintiff, could, by the exercise of ordinary care, have avoided the injury. In instructing the jury as to such an issue, some of the points discussed in the case of Bullock v. Railroad, 105 N. C., 180, would necessarily arise, but were not referred to by his Honor except in stating, in a previous part of his charge, the abstract principle. If the jury had found, in response to another issue, that, notwithstanding plaintiff’s negligence, the defendant could have avoided the injury by the exercise of ordinary care, the finding of the second issue would have been immaterial. The Judge, in effect, however, decided upon the evidence that the negligence of the plaintiff was not, but that of the defendant was, the proximate *411cause of the injury, without leaving the jury to determine whether the defendant, after he ascertained or had reason to believe, or, by proper watchfulness, might have discovered that the horse was fastened upon the track, could, by the use of-the appliances at his command, have avoided running his dump-car over it. He might have submitted such instruction and applied it to the first issue, but more clearly and readily to an additional one, such as we have suggested.

There was error, for which a new trial must be granted.

Error.