Heney

(after stating the facts as above).

*198 We may pass by the defendants’ motion for a non-suit, made at the close of the plaintiff’s evidence, the denial of. which is assigned as error, for the defendants thereafter waived their motion by offering testimony in defense of the action.

Error is assigned to the refusal of the court to direct a verdict in favor of the defendants. The motion was based on the grounds: That the plaintiff had failed to establish that both the defendants were engaged in the business of a common carrier; that he failed to establish that he was employed or working for the Katalla Company; that the evidence proved his contributory negligence; and that there was no evidence to make out a case against the defendants. The argument made in support of this assignment of error presents grounds in addition to those which were expressed in the motion for a directed verdict, and it is said that a joint action against the two corporations cannot be maintained; that the action must be based either on the Employers’ Liability Act ( 45 U.S.C.A. § 51 et seq.) or on the common law, and not on both, and that if the act applies to either defendant as a common carrier, it…