In this case I concur.! I do hot think that we can consider the testimony of. the fla¿mán to the effect that a whistle was blown or with respect to signals as to the approaching train, *271which he claims that he gave, for the reason that such testimony was not proper cross-examination of anything elicited from the witness by plaintiff on the direct examination. Such a course of examination was in this case promptly objected to by counsel for the plaintiff, and in this respect the course of the trial differs from that in the Johnson case. While it may have been in the discretion of' the trial court to permit defendant at that time to introduce part of its testimony through the examination of said witness, in determining the motion for non-suit the- case must be considered as if no such evidence had been received up to the time when the motion was made.
Judgment reversed and new trial granted, costs to abide the event.