The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1891-07-18

g. Where such record has been kept, and
is produced from the proper custody, the
clerk of the circuit court, and is identified
by the proper authority, it is admissible as
evidence in any cause to which it may be
pertinent.
6 Such records, by the provisions of
Chapter 863, Laws of 1859, (Sec. 9, p. BIT
McClellan's DigestD are stamped with all
the characteristics of public records, to
which the public shall at all times have full
access.
Judgment affirmed.
r. W. Williams, for appellant; John ".
Malone, for appellee.
Jacksonville, Tampa and Key West Rail-
way Company, Appellant, VS.. Peninsular
Land, Transportation and Manutactur.
ing Company, Appellee-Orange county.
Judge Mitchell of the Sixth Circuit sat
IN the place of Mr.. Justice Mabry, who
was disqualified.
RANEY, G. j.:
1. An assignment of error which is sub
mitted without argument" may be treat
ed az abandoned.
2. The purpose of the practice act OF
February s, 1861 (sections 1921, page SIG
| McClellan's Diges0, in authorizing inter-
rogatories to be prOpounded 10 an. action
at law 10 the opposite party, and requiring
such party, or in case of a body corporate,
its officers, TO answer the same in writing
by affidavit, was 10 enable pal ties to obtain
testimony without having to resort TO tardy
and expensive procedure OF bill of dis
covery in equity.
| The extent of the examination OF all
adverse party by interrogatores under the
practice act of February 8, 1861 (sections
1891, page SIG McClellan's Diges.), is sub
! iect t. the same limitations as an examina-
lion by bill of discovery in equity in aid
of an action at law. The examination
lust be simply in support Of the case or
defense Of the party prOpounding the in
terrogatories, and cannot extend to the
! tbole case.
| T. Whether the provisions of the practice
act of February 8, 1861, authorize inter
roga,ories to be propounded in an action at
wv does away with the equity jurisdiction
or practice tor obtaining discovery in aid
OF such an action, not decided. Author.
ities pro and con cited. This statute was
not repealed by the act of February 4, 1874
(section "a, page 518 McClellan's Digestl
| removing the common law disability TO
testify on account of interest in, or being
party to, cause.
s Tue answers Of an officer of cOrpOr.
alton t. interrogatories for discovery filed
in An action at law are admissible as evi
dence against the corporation on the trial
of the cause.
6. An obj ction by corporation to the
introduction in evidence of answers of an
officer to incrrogatories filed therein for
discovery, on the ground that the officer
was not one of such grade or character as
should have answered, such objection not
being made until the trial is on, nor sup
D ,r,ed by evidence, is properly overruled.
7. A railroad company which has p s.
session of and is actually operating rail
road, and holds itself out 10 the public ts
I. . the operator, is liable for damages OCCASION
= ed to third persons by the negligence OF i's
officers or agents in the management or
operation OF the same, whether its posses.
: sion thereof be legal or illegal.
8. Wher. railroad company operates
and controls q railroad in its own nam
: and through its own ofncers and employees
il is liable to third person tor an injury
resulting TO HIM from negligence in thH
MANAGEMENT or operation OF the same, and
/ no exemption from such liability is caused
: | by the tact that its possession and opera
ton Of the road are under an agreement
\ between such company and the owner O
the road, by the terms of which the com
, pany is to operate the road in its own
right. furnish the rolling stock and tC
charge for the use Of the same, and also
charge q certain per cent OF its own ex
, penses as the operating expenses OF such
: road.
9. The burden of proving negligence il
on the party alleging it.
10. The mere emission of sparks from q
. railroad locomotive, or the mere setting out
OF fires thereby, is not, per SO, evidence ol
negligence upon the part OF the company
. bur when the emission Is OF such character
Us is Inconsistent with the common exper-
=. ience or the known efficiency OF approved
= spark arresters in general use. and properly
used, it is evidence OF negligence. Th.
q emission of sparks of unusual size, or both
of unusual size and in unusual quantities
is evidence sufficient to raise the presump
ton OF negligence, and throw upon the
company the burden of removing suct
= presumption.
I II. Where In an action for negligently
r setting out fires and burning property, thu
testimony in half of plaintiff shows ar
) escape OF sparks of extraordinary size. anC
\ IN unusual quantities, or far in excess o
y anything likely 10 occur in the ordinary
r operation of a locomotive duly supplied
e with modern appliances approved by the
test of use, and properly managed by com
peent operatives, and the evidence in be-
8 half OF the defendant shows that the engine
t was in good condition, and supplied with
J, proper appliances for arresting the escape
r of sparks, and was properly managed by
competent operatives, which circumstance
4 are relied on by defendant as showing due