Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-12


ages which might be recovered by the
plaintiffs against the company.
The court sustained the objection n
refused the testimony.
The defendant then offered to intr0-
duce an agent Of the company who had
nothing to do with the running OF the
trains, and also the local depot agent at
Belbuekle. Objections were made 70 h
competency Of these witnesses, which
were in like manner sustained by the
court, and the witnesses rejected.
These facts present the only question
raised in the record. It is insisted that
the Code Title S, Oh. 4 article /, excludes
all engineers, agents and employees OF
the and we are called upon TO
construe this clause Of the statute, sec
ton Il66 in order 90 prevent accidents
upon railroads, declares, that certain pre-
cautions shall be observed; n In the
two succeeding sections, the liability OF
railroad companies failing to observe, or
cause to be observed, by their agents and
servants, these precautions are defined
and Ia section 1859, il Is declared that
(" When a railroad company is sued for
killing or iBjuring stock, the burden OF
proof that the accident was unavoidable
shall be upon the company and the en-
gineer, agent, or employee Of the COM
pany shall, in no case, be a witness for
it.p
How is this provision OF the statute to
be understood? Is il TO be interpreted
so as TO exclude all witnesses in all ac-
lions against railroad companies for
killing or injuring stock, all engineers,
agents or employees Of the company; or
is Il to be limited to those who had the
control and management OF the train at
the time the accident occurred ? Were
the question an open one in the state, we
should certainly feel it presented more
difficulties than it nov does. 1t came
directly before this cOnrt in the case Of
the Memphis & Ohio r. r. company
vs.. Hern,n manuscript opinion, in which
the whole question was most deliberately
and ably discussed by Judge Wright.
The opinion, it is true, was not unani-
nous; but we have carefully revised it,
and the authorities referred TO in support
of il, and feel no hesitation in ~recOgniz.
ing it as the law, and a just and reason
able Interpretation Of the statute.
In this opinion il is correctly decided
that, by the terms Of the statute, as well
as the recognized principles Of the COM
mon law, where il has been established
by evidence on the part Of the plaintiff,
that his stock has been killed or injured
by the railroad company, the onUs pro-
bdudi is then cast upon the defendant.
Cristisn VS.. Gregg, 2Campbel 79; Stokes
VS.. SaltOstall, - Peters Isl.
The learned Judge who delivered the
opiniOn Of the court in the case OF the
Memphis and Ohio railroad company Is.
Horn, above cited, after declaring this
principle applicable to railroad cOmpa-
MES, and citing various authorities to
sustain il, says "WhRt, then, are WetO
understand by the clause, and the en-
gineer, agent or employee Of the COM
pany, shall ia no cas- be a witness for
it?5 Did the legislature intend to render
Incompetent all engineers, agents and
employees, whether the matter drawn in
question involved their Oarelessness or
Negligence OF not, or only such as were
directly interested by means Of being
thus implicated? II the latter be its true
meaning, as we think it is, then Il simply
af1rms a common Law principle"
The statute itself says the court upon
no Just rule of construction, car be held
10 exclude any witness other b the
particular engineer, agent or employee
whose tOrtiOus act Tor acts II More than
one be implicated or carelessness or
negligence are dr>wn in question in the
case, and in ref pect of which he would
be liable over t0 the railroad company if
the latter should fail ia the action"
This construction Of the statute, we
think, is conclusive Of the case now
under consideration, 1t follows as a cor
Rotary that the circuit judge erred both
in excluding the engineer, conductor and
brakeman after the execution Of the re-
lease by the compsny, and also in refus-
ing the agent aud local depot agent as
witnesses who were in no way impli-
Gated in the negligence that produced the
The judgment of the circuit court must
be reversed and q new trial awarded.
MILLIGAN, Judge.
HAWKES.. Dissenting. 1