The only assignments of error in this case are the refusal of the court below to direct a verdict for the defendant. We do not see how the court could have taken the case from the jury. There was evidence that the blue flag was placed on the railroad track at a sufficient distance from the car under which the deceased was at work to protect him if it was seen by the conductor of the defendant’s train. The accident occurred at about 2 o’clock in the afternoon, and the day was clear. The question whether the men on the defendant’s train ought to have seen the flag was essentially for the jury. If their omission to see it was negligence, the defendant was liable, and that question could only be decided by the jury.
Judgment affirmed.