delivered the opinion of the court.

The third instruction asked by the defendant was properly refused, for the effect of the statute, § 1059 of the code, is to devolve on the railroad company the necessity of exculpation from negligence in causing the injury shown to have been done, and unless it does this it is liable.

The court should have given the instruction asked by defendant that the verdict should be for it. There is no conflict in the evidence, and that of the defendant, which consists with that for the plaintiff, exonerates the defendant from all blame.

Beversed and remanded.