A verdict, was rendered in this case.in favor of the defendant in error; the plaintifis in error moved for a *320new trial, which was refused by the court, and they excepted.
Exception is taken to the following charge of the court: “If the company did what the statute required, and was otherwise guilty of no negligence as charged in the declaration, and the plaintiffs’ father was killed notwithstanding, his children could not recover.” ■ The error assigned is that the evidence adduced by the defendant itself showed that the servants of the company in charge of the train were guilty of .negligence, and, therefore, this charge of the court was not warranted by the evidence in the case. We think this charge was plainly error, and the exception to the same was well-taken, there being no evidence in the case to authorize the court to so charge the jury, and for this reason the judgment of the court below in refusing to grant a new trial should be reversed.
It is unnecessary to notice any of the other assignments of error, as upon the next trial of the case the court will doubtless correct any errors he may have committed upon the former trial. _ Judgment reversed.