(a'fter stating the facts as above). [1] As the cause was submitted to the jury upon a prima facie case establishing the plaintiff’s claim for damages, and depending for sufficiency wholly upon the credibility given to the plaintiff’s witnesses, and also upon conflicting evidence as to contributory negligence on the part of the plaintiff and upon evidence tending to impeach the credibility of witnesses of both the plaintiff and the defendant, and'without any motion on either side to direct a verdict, it was clearly erroneous for the court below of its own motion to take the case from the jury by instructing a verdict for the defendant, and requires a reversal.

Particularly is this reversal required because the instruction for a verdict for the defendant was made in the absence of and without the knowledge of the plaintiff and his counsel, thereby depriving the plaintiff of his' right to make seasonable objections thereto and reserve a proper bill of exceptions, or of taking a nonsuit at his option.

[2] The defendant’s opposition in this court to the plaintiff’s relief under this writ of error is that objections were not made in court at the time of the instructed verdict and exceptions reserved in the presence of the jury and before its discharge, and the authorities cited by him are in support of this opposition.

However, as the bill of exceptions granted by the court below shows that the absence of the plaintiff and his counsel was the result of an agreement between the parties, evidently made with the knowledge and consent of the court and with a view, to the absence of counsel when the verdict should be received, we are of -opinion that the defendant is estopped from invoking the claimed rule in this case.

The fourth and fifth assignments of error are well taken.

The judgment of the District Court is reversed, and the cause is remanded, with instructions to grant a new trial.

WALKER, Circuit Judge, dissents.