Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-02-07
DECISIONS OF THE SUPREME
COURT.

Nashville. December Term, 1866.
Reported for the Urion and Dispatch by Linds-
ley a. Reid.
~ e G. Railroad Company vs.. 4. d. Fuget
This Is an action brought in the Circuit
Court Of Bedford county, by the defendant
IN error, TO recover damages from the Rail
road Companyifor killing a stallion and
other stock On the road. There was 4 YER
dict and judgment IN favor Of the plaintiff
below, and an appeal 20 this court.
The bill Of exceptions shows, that after
the plaintiff had closed his testimony, the
defendants offered as witnesses the en-
gineer, Conductor, and one Of the brakes
men, who were on the train at the time the
stock was killed bat neither Of whom was
there in the employment Of the company.
Objections were made TO the competency Of
these witnesses; and thereupon the defend
ants produced a release, executed by the
company, discharging said witnesses from
all hhility on account Of any damages
which migh be recovered by the plaintiff
against the company. The court sustained
the objections and refused the testimony.
The defendant then offered 10 introduce
an agent Of the company who had nothing
% do with the running Of the tr1ins, and,
Objections were made 10 the competency OF
these Witnesses, which were in Ike man
ner sustained by the courf, and the wit
nessea rejected.
These facts present the only question
raised in the records.
Il il insisted that the Code, Title 8, ch.
4, Art. l., excludes al engineers, agents,
and employees of the company; and we are
called'upon 20 construe this clause Of the
statute. Section ,l66, in order TO prevent
accidents upon railroads, declares that GER
tain precautions shall be observed and in
the two succeeding sections the liability Of
railroad companies falling TO observe, or
cause 30 be observed by their agents and
servants these precautions, IL defined and
in section ] 1859 il isdeclared that: When
a railroad company il sued for killing or
iniuring stock, the burden Of proof that the
accident was unavoidable shall be upon the
company, and the engineer, agent or en-
ployee Of the company shall in no case be
witness forit"
How is this provision of the statute TO be
understood Is il to be interpreted so as
10 exclude az witnesses in all actions
against RAILROAD companies for killing or
iHiuring stock all engineers, agents or en-
those who had the control and manage
ment Of the train at the time the accident
occurred9 Were the question an open one
in this State, we should certainly feel it
presented more difficulties than we think
itnow does Il came directly before this
court in the case Of the Memphis and Ohio
Railroad Company vs.. Horn, ms. opinion. in
which the whole question was most elabo-
rately and ably discussed by Judge Wright.
The opinion, il Is trne, wasnoi unanimous;
but we have carefully reviewed it, and the
authorities referred 20 in support of il, and
feel no hesitation in recognizing IL a. the
law. and lust and reasonable interpreta-
ton Of the statute.
In this opinion, il is correctly decided
that hv the terms Of the statute, "a well as
the recognized principles Of the common
law. when il has been established by evil
dence on the part Of the plaintiff that his
stock has been killed or injured by the
railroad company, the onts probandi is then
cast upon the defendant [Christian as.
Gregg. 2 Campbell, ~. Stokes as. SALON
stall. 10 Peters, ISL.
Tie 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 the
pYinciple applicable 10 railroad companies,
and citing various authorities 90 sus-
tain n. saws: What, then, are We
10 understand by the clause fand the en-
SINGER. agent or employee Of the company,
shall In no case be witness for itV Did
the IevislatlIre intend 30 render incompe-
tent all engineers, agents and employees,
whether the matter drawn in question in.
..,l,oJ their c-releagneaq and NEGLIGENCE or
not or only such az were directly interest
ed by means Of being thus implicated. II
the latter be its true meaning, as We think
Il H. then It simply afhrms common law
principle.
The statute itself says the court, upon NO
lust rule OF ctnstruction, can be held 10
exclude any witness other than the partiCu.
lar engineer agent or employee whose tor
lions act Tor acts, If more than one be inn
nlieated) or carelessness OF negligence are
drawn in question in the case, and in re-
spect Of which he would be liable over to
the Railroad Company il the latter should
fail in the action.
This construction Of the statute we think,
ia conclusive Of the case now under consid-
erstion Ii follows ~ 4 corrolary, that the
circuit Jndgn erred, both in excluding the
engineer. conductor and brakeman, after
the execution of the release by the compa'
nv and also in refusing the agent and local
depot agent as Witnesses who in no way
were implicated in the negligence that pro.
duced the injury.
The Indictment of the Circuit Court mus
be reversed. and a new trial awarded.
MILLIGAN, Judge.
Hawkins. Judge, dissenting.