MEMPHIS & CHARLESTON RAILROAD COMPANY vs. BIBB

MEMPHIS & CHARLESTON RAILROAD COMPANY vs. BIBB. [ACTION AGAINST RAILROAD COMPANY, TO RECOVER VALUE OR IIORSES KILLED EY LOCOMOTIVE.] X. Objection to intei^'ogatory'io wiiim.1; when'made. — When- a deposition is taken -without filing interrogatories, an objection to a question, on the ground that it is -leading, must he made at the examination oí the ■witness, and comes too late when made for the first -time at the trial. 2. Statutory liability ef railroad company ; general charge on-cvidence. — In an action against a railroad company, to-recover the value of horses run over and killed by the defendant’s engines and cars, if the evidence simply shows that the horses were run over and killed by a train of cars, and that the' engineer in charge of the train failed, at the time the accident occurred, to comply with the requisitions of the ■ statute as to blowing the -whistle, ringing the bell, reversing the en- . gine, &c.,"'(Session Acts 1857-8, p. 15.) the court is not authorized to charge the jury, that, if they believe the evidenco, they must find for the plaintiffsuch a charge is an invasion of-the province of the jury, who alone 'could infer from the evidence that the damage .was caused ‘ .by the engineer’s neglect of duty. Appeal from the Circuit Couit of Jackson. Tried before the Hon. S. D. Hale. This action was brought by A. S. Bibb, against the ap-ypellant, a corporation chartered by an act of the legislature • of this State, to recover the value of two horses, which ' were run over and killed by a train of cars belonging to the defendant; and was- commencéd-on the 5th of November, 1859. No pleas appear in the record. “ When the cause was called for trial,” 'as the bill of. exceptions states, “ the-defendant moved the court to suppress the second interrogatory, with the answer thereto, contained in the depo-' sition of the witness Rigney, because said interrogatory is-leading.” The deposition, of this witness was taken without filing interrogatories; but.the commissioner by whom-it was taken wrote down the questions which were asked,-., with the answers thereto. The court-overruled the motion, and the defendant excepted,.. . The witness Rigney testified, that he was-a passenger on-» the train of cars by which the plaintiff's horses were killed p that, his attention was-attracted by the continuous blowing of. the whistle, and,,on looking out of the window, he saw - the horses on the railroad track, running at full speed, and apparently much frightened j- that the cars were moving • with their usual velocity, were not more than fifty yards . behind the horses-, and were gaining on them; that the-horses, when he first saw them, were about one hundred-' ■and fifty yards distant from .the railroad bridge across Paint ■ Rock River, and were running towards the bridge; that they were overtaken by tbe cars just'before reaching tbe bridge, were run over,- and killed ; -and that the speed of the cars was not checked- until they were very near the bridge, and not in time to save the horses. It'.was - proved by the plaintiff, that the railroad, -.track waa-crossed. by the public road leading from Huntsville to BeHefonte, at a point which was variously estimated by-tbe .witnesses at from--fonr to six hundred . yards, from the. bridge; that the - track, at the crossing, was on an embankment about eight' feet high, which gradually increased-to about twenty-five-feet at the bridge, and -was anoup-grade •, and'.that the.en~ - gineer, who had charge of the train at the. time of the accident,'did- not blow.the whistle, nor ring.the 'bell, before .reacüióg -’the. crossing. The value of, tbe .horses was also proved. .. .The above being the -substance* of .-all the evidence introduced by the plaintiff, and tbe defendant introducing no evidence at all, the court charged the j ury, “ that,; if''they believed tbe evidence, they must find for the plain-rfiffto which charge the defendant excepted. The charge to the jury, and the ruling of the court on -'the evidence, as above stated, are now assigned as error. WALKER & Brtckell, for appellant. ROBINSON &■ J'ONES, contra,. [MAJORITY — STONE, J.] STONE, J. The objection to the form of the interrogatory, if there be anything in it, came too late. It should have been made at the examination of the witness; for, to hold otherwise, would license parties to experiment, and greatly hinder the ascertainment of truth;- — Kyle v. Bostick, 10 Ala. 589; Sayre v. Durwood, 35 Ala. 251; Towns v. Alford, 2 Ala. 378 ; 3 Bin. 130; 10 S. & R. 63. The act “ to define and regulate the liability of railroad companies,” approved February 9th, 1852, which was construed in Nashville & Chattanooga Railroad Co. v. Peacock, (25 Ala. 230,) was materially modified, and some of its provisions repealed, by the later statute, of the same “title, approved February 6th, lS58.-NSee Session Acts ef 1851-2, p. 45"; and of 1857-8, p. 15. The later statute was of force when the ..plaintiff in the present suit sustained the injury of -which-he complains. The act of 1858, after declaring that it is “ the duty of "the engineer, or other person, having control of the running -of a locomotive on-iany railroad in this State, to blow the whistle, or ring the bell,” and to apply the brakes, and reverse the engine in certain cases, employs the following language : “ That .all-railroad companies, in whose employment said engineers are at the time of any accident occasioned by failure to comply with the provisions of '.the first section of this act, shall be liable for all damage done to persons, stock, or other property, on account of said failure to comply with the requirements of this act, or on account of any negligence whatever on the part of the railroad company or its agents, and in no other case.” The testimony in this case tends to show, /¿hat-the engineer failed to comply with the provisions of the first section of the act of 1858 ; and to this extent, there does not-seem to have been any conflict in the testimony. But there was no witness who testified, or probably could testify, that the accident complained of was occasioned by the en~-gineer’s‘omission-of duty. , Before it could be affirmed that Mr. Bibb had lost" his horses on account of the engineer’s failure to comply with the--, duties enjoined on-him by the statute, it was necessary that some-.ot'her fact should be inferred from those of which proof was made. It is the province of the jury to-draw inferences of .fact; bub .the court can draw no such conclusions, except-the case be within the operation of some legal presumption. — See Br. Bank v. Crocheron, 5 Ala. 250 ; Ward v. State, at the last term y-- Bliss v. Anderson, 31 Ala. Rep. 612. The charge given on the effect of the evidence, if believed, invaded the province of the jury. This case is not affected by. the act of the late extra ses» .. sion of .the legislature. — rBamphlet Acts, 37, Reversed andlremanded. R. W.- Walk-eb, J., not sitting.