concurring: I concur in the disposition made of this appeal, on the ground that the testimony clearly shows negligence on the part of the company in running its engine without a headlight, and which resulted in intestate’s death.
*654I deem it not improper to say, however, that as now advised, i£ it should be made to appear that the intestate at the time he was killed was running a hand-ear on the railroad track contrary to the orders or rules of the company, it would be such an act of contributory negligence on his part as would bar a recovery. As the evidence tending to establish this defense on the record as it now appears all comes from the testimony introduced by defendant, it may not be considered on a motion to nonsuit. I therefore concur in the judgment awarding a new trial.