The evidence for plaintiff tends to prove that his driver, Arthur Johnson, approached defendant’s tracks at Statesville with a view to crossing; that the watchman signaled *580Mm to cross, and as be was driving across, tbe yardmaster bit tbe mules in tbe face and tried to stop tbem, and tbat in consequence tbey were injured by a train. Plaintiff contends tbat if tbe yardmaster bad not interfered, bis team would bave safely crossed.
Tbe defendant’s evidence tends to prove tbat tbe watchman signaled tbe driver to stop before be started across tbe tracks; tbat be did not beed tbe signal; tbat when tbe yardmaster attempted to-stop and turn tbe mules, tbe driver whipped tbem up, in consequence of which tbe approaching train ran. into tbem.
It is contended tbat bis Honor should bave submitted an issue as to tbe last clear chance. Upon tbe evidence in tMs case and tbe contentions of tbe parties, we do not think tbe issue is raised. If it was, however, tbe plaintiffs failed to tender tbe issue and except to those submitted.
Tbe plaintiff excepted to tbe charge of tbe court upon tbe second issue, which is as follows: “Now, tbe defendant contends tbat if you should find tbat tbe defendant was negligent, if you should find tbat it signed, or invited tbe plaintiff’s driver, Johnson, to come on with tbe wagon and team, tbat still plaintiff’s servant was guilty of contributory negligence; when be was on tbe main track, when tbey tried to stop him — tbe evidence, you will remember, tends to show tbat tbe plaintiff Johnson was on tbe middle track, tbe main track; tbat Garrison jumped off tbe car and ran and bit tbe mules in tbe face with bis bat, caught bold of one of tbem, and tbe flagman ran around with bis flag trying to flag tbem down; tbe evidence tends to show tbat tbe driver of plaintiff’s team put whip to tbem and forced tbem on. If you find tbat to be a fact, notwithstanding the negligence of tbe defendant, if you find tbat the defendant was negligent; if you further find tbat, notwithstanding tbe defendant’s negligence, tbe plaintiff could bave avoided tbe injury by assisting tbe flagman and Garrison to stop tbe mules and not whip tbem, and if you find that bis putting whip to tbe mules and not trying to stop is tbe proximate causé, tbe burden being on tbe defendant to show by tbe greater weight of *581the evidence, it would be your duty to answer the second issue ‘Yes.’ If you do not so find that it was the negligence on the part of Johnson, the driver, why you would answer the second issue Yes.’ ”
It may be that his Honor inadvertently used the word “Yes” at close of the above paragraph, and intended to use the word “No.” But we are bound by the record.
If the evidence offered by the defendant is believed, the driver Johnson was guilty' of very gross negligence which directly caused the injury and would bar a recovery; but this evidence was controverted by plaintiff.
The instruction of the court, as appearing in the record, was tantamount to directing a verdict. He charged, substantially: “If you do not find that Johnson was guilty of negligence, you will answer second issue Yes.’ ” This is manifest error and entitles plaintiff to another trial. We doubt not that the record is erroneous, or else that it was a lapsus lingua upon the part of the careful and painstaking judge; but it appears so in the record, and we are' bound by it. It is our duty to state that the ease on appeal was agreed to by counsel and not submitted to the judge.
New trial.