1. Where a flagman, in stepping off of a train at night for the purpose of setting a switch, fell into a trestle and was in jhred-and'afterward was picked up and placed upon a bunk .in .a'eábbóáe;.oh:,'ac,tuit by him against the railroad company it was error to permit him to testify that after he fell and the conductor, who was 250 feet distant, had come to the caboose, he remarked in the hearing of the flagman, but to some other person, “I told you I had stopped the cab on the trestle and Stephens [the flagman] would walk out and kill himself,” or some similar statement. This was introduced in chief, and not as matter of impeachment of any witness who had testified in regard to the' subject.
2. Whether or not the case made by the evidence introduced by the plaintiff was sufficient to withstand a motion for a nonsuit without the ad- ■ mission of the evidence referred to in the preceding headnote, with such evidence admitted for the purpose of showing notice to the conductor of the dangerous situation of the flagman, in connection with evidence of an order on his part for the flagman to leave the cab to set the switch, the case was clearly one in which the refusal of a nonsuit was proper. The admission of such evidence being material error, making the "refusal of a nonsuit clearly proper had it been correctly admitted;. "and the case having proceeded to a verdict in favor of 'the injured flaginan *646with shch evidence before the jury, its admission will necessitate a neWj trial. ■ Judgment reversed.
April 27, 1914. Action for damages. ' Before Judge James B. Park. Wilkinson superior court. April 9, 1913. H. W. Johnson, for plaintiff in error. Evans & Evans, contra. All the Justices concur.