1. Under the law of this State, an employee of a railroad company can not recover damages for personal injuries against the company when his own negligence, however slight, contributes in an appreciable degree to the cause of his injury. Therefore, in a suit for such a purpose, no presumption against the company arises until the employee shows affirmatively that he was himself without fault; and it is error to give in charge to the jury section 2321 of the Civil Code, in such a manner as to make it appear applicable irrespective of this limitation. Georgia Railroad Co. v. Hicks, 95 Ga. 301 (22 S. E. 613).
2. Whether the commission of acts other than those which the law makes, negligence per se constitutes negligence is a question of fact, to be determined by the jury, and not by the judge. Therefore, in this case it was error to charge as follows: “If you find that the engine ran back' and bumped the ear in which he was working, or at which he was working, and caused this plank to fall out, and this was the reason he was. *56injured, I say tlie plaintiff would be entitled to recover.” Hopkins’ Law of Personal Injuries, §§25, 2G, and many decisions of the Supreme Court there collated. * Judgment reversed.
Action for damages, from city court of Baxley — Levi O’Steen, judge pro hac vice. September 22, 1908. Submitted December 9, 1908. — Decided April 15, 1909 John F. DeLacy, for plaintiff in error.