delivered the opinion of the court.
It was error to exclude the testimony of Chambers to the effect that there was no obstruction which would have prevented the engineer from seeing Combs.
The point made by the learned counsel for the appellee that ■ Code 1906, § 1985, does not apply in this case> because the killing here occurred prior to the taking effect of the Code 1906, is not tenable, for the reason that Combs was not an employe of' the Mobile & Ohio Railroad Company, but of the St. Louis & San Francisco road, and it is the Mobile & Ohio Railroad Company which is the defendant here.
On the whole case, we think it was error on the part of the-court below to give the peremptory instruction for the defendant. The case should have gone to the jury, for settlement by them of the questions of fact as to negligence and contributory negligence, under proper instructions from the court.
Reversed and remanded.