Illinois Cent. R. Co. v. Brown
| Decision Date | 02 January 1928 |
| Docket Number | 26778 |
| Citation | 115 So. 115,149 Miss. 42 |
| Court | Mississippi Supreme Court |
| Parties | ILLINOIS CENT. R. CO. v. BROWN. [*] |
1. APPEAL AND ERROR. Trial. Admitting in rebuttal, evidence which should have been introduced in chief, is discretionary and action will not be held reversible error unless prejudice results.
It is within discretion of court to admit in rebuttal evidence which properly should have been introduced in chief, and it will not be held to be reversible error unless discretion is exercised to prejudice of rights of adverse party.
2. APPEAL AND ERROR. Excluding defendant's evidence in reply to plaintiff's evidence in rebuttal, showing liability which he should have introduced in chief, held reversible error.
In action to recover value of mules alleged to have been killed by defendant's passenger train, refusing to permit defendant in surrebuttal to reply to plaintiff's evidence in rebuttal that witnesses had discovered mule tracks on railroad track indicating that mules had run on track about one hundred and fifty yards, which should have been introduced in chief as tending to establish defendant's liability, held reversible error.
APPEAL from circuit court of Alcorn county. HON. C. P. LONG, Judge.
Action by Harry Brown against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Reversed and remanded.
May Sanders & McLaurin and R. V. Fletcher, for appellant.
The plaintiff relied upon the prima-facie case made by proof of injury by the running of the train and proof of the extent of the damage. Since it was admitted that the mules were killed by the running of the train, clearly the only defense that could be made was by proof that the accident could not have been prevented by the exercise of proper care on the part of those in charge of the train. This defense was fully and completely established by the testimony of the engineer and fireman. When the defense rested, the plaintiff for the first time called his witnesses and offered to negative the defense which he is bound to have anticipated by proof of tracks of mules discovered on the railroad track the next morning after the accident, which tracks indicated that mules had run for about one hundred fifty (150) yards on the track over which the train had passed. It was reversible error for the court to permit the plaintiff, after the close of the case for the defense, to offer this evidence which was a part of his case in chief. As we have stated, the plaintiff must have known that the only defense available was the defense that was made, namely, that the engineer was unable to avoid striking the mules by the exercise of proper care in the operation of the train, and, if the plaintiff had available to him testimony that would enable him to invoke the doctrine of the last clear chance, he should have offered it at the outset, but he was content to rest his case upon the prima-facie case and offered no excuse for withholding this evidence to use after the defense had rested. The same sort of procedure was attempted in Mock v. Hines, Director General, 125 Miss. 111. See, also, Railway v. Hayes, 78 Miss. 321.
B. F. Worsham, for appellee.
Mock v. Hines, 125 Miss. 111, is referred to by counsel in their effort to criticize the manner of the trial of this case in the court below, and in referring to this case they say that the plaintiff rested on a prima-facie case. We respectfully submit that a casual reading of the Mock case demonstrates that while attorney for appellant claimed to have relied on the prima-facie statute, still in the very face of the statute he himself showed all the facts and circumstances surrounding the injury and did not in fact rely on the prima-facie statute. The only possible chance for Mock to have recovered or have had his case submitted to the jury was to show that the crossing was blocked for a longer period than five minutes, and this vital and sole point in his case was absolutely left out in offering the testimony in chief.
We confidently believe that this court will hold that the testimony offered by the plaintiff after defendant rested was directly in rebuttal to the testimony offered by the defendant, and that the court was eminently correct in allowing the plaintiff to offer the testimony as rebuttal testimony.
In Railway Co. v. Hays, 78 Miss. 21, it is held, as has been repeatedly held by this court, that the burden of proof is placed on the defendant to show facts exculpating it from liability, and we do not think the procedure as outlined in that case was at all like the procedure in this case in its trial in the court below. It seems that practically after that case was closed a witness was introduced who claimed to have been standing near the scene of accident and who testified that the mule was fastened in the trestle. Evidently in the trial...
To continue reading
Request your trial