delivered the opinion of the court.
Leaving altogether out of view Sec. 1985 of the Code of 1906, still the peremptory instruction requested by appellant was properly, refused.
At the time the engine struck deceased it was being preceded by a flagman to whom the engineer looked for signals and, according to the evidence of Ward, a witness for appellee, the truth of which was for the jury and not the court, this flagman saw deceased on the track and must have realized that he was unaware of his danger in ample time to have warned him of the approaching engine or to have signaled the engineer who then could, have stopped the engine before it struck deceased. *821Granting that deceasd was guilty of contributory negligence as to which we express no opinion, if the employees of appellant in charge of the train, after discovering his peril, could by the exercise of reasonable care have avoided inflicting the injury, it was their duty so to do.
Affirmed.
Suggestion of error overruled.