delivered the opinion of the court.
This case in its essential aspects is controlled by the case of Louisville, etc., R. Co. v. Crominarity, 86 Miss. 464, 38 South. 633. If the plaintiff and his witnesses are to be believed, the accident in this case was due to the negligence of the engineer and fireman in failing to blow the whistle or ring the bell at the crossing, as by statute it was their duty to do. Travelers on the highway have a right to insist that these signals be given, not only that they may keep off the track, but that they may not drive their teams so near the track that fright will certainly follow. In this case the fright led to the killing of the horse by the train. It is true the defendant’s servants denied that there was any negligence; but this conflict was for the jury and not for the court.
The peremptory instruction was improper, and the judgment is therefore reversed and the cause remanded.
McWillie <& Thompson and Orr & Harris, for appellee, suggested error.
J. T. Harrison, for appellant responded to the suggestions of error.
The suggestion of error was overruled by the court.