The single assignment of error is, that the court should have directed a verdict for the defendant. This the learned judge could not have done, in view of the evidence. It is enough to say that there was a conflict of testimony as to the speed at which the wagon was driven. If the driver was driving rapidly, upon a dark night, when he reached a crossing where foot-passengers were accustomed to cross and had a right to cross, and by doing so the plaintiff was run over by the wagon and injured, it was certainly a case for the jury. And there was some evidence that he was driving at a greater rate of speed than would be justifiable under the circumstances. He was following a passenger car, which was going up the hill at a walk; and there is no dispute but that he turned out to pass it, and did pass it, and just as he had done so the plaintiff was struck. If the driver’s horse was walking, as contended for, it is difficult to see how he could have passed the car in so short a time.

Judgment affirmed.