The Montgomery advertiser., 1907-04-23
Base Ball
oday
Montgomery
VS..
Atlanta
Game Called $50
Game Called $50

erty," and no effort was made, by mo-
ton or otherwise, by defendant to pro-
cure a specific statement as to the ma
ture and character of the other per-
sonaI property, a general question ask
ing If anything else was destroyed by
the fire to which no objection was in
terposed was answered. ~
II lost dog worth $25.' Held: This
answer was competent.
s. Evidence; conclusions of witness
est was proper to refuse to permit
the engineer of the train causing the
fire to answer a question IF he han
died the engine carefully as he went
along by and left the place where the
injury occurred" that being a ques-
ton for the jury.
6. Same.-It was admissible to show
by witnesses that they had seen de-
PENDANTS engines emit sparks of I'M
usual size and in unusual quantities.
z. Trial; reception of evidence; dis
erection of court.-Although such tes-
timony should more properly be offered
as part of the original case, it is with
in the discretion of the trial court
whether he will permit witnesses on
rebuttal to testify to main facts in the
case. such as they saw defendants en-
gines emit sparks of unusual size and
in unusual quantities.
8. Railroads; operation; fires; ac-
ton; admissibility of evidence The
evidence for the defendant tended to
show the proper equipment OF all or
defendants engines at the time OF the
fire. The evidence for plaintiff tended
to. show that the engine drawing the
last train out of the city that night
emitted the sparks which caused the
fire. Defendants evidence tended to
show that that particular engine emit
ted no sparks. Held, ii was proper to
permit plaintiff in rebuttal to ask
witness whether or not these engines.
while being operated along that road
about that time threw out and fire, and
If so. was it of an unusual size or I'M
usual quantity for an engine" as the
answer to the question tended to con-
tradict the defendants witnesses as to
proper equipment, and because the tes-
! timony did not so fully and certainly
! identify the engine inflicting the in
jury as to preclude proof that the en-
gines generally threw out such sparks.
o. Trial; instructions-An instruc-
ton which required the conscience and
not the mind of the jury to be reas-
onably satisfied, was properly refused.
| 10. Same-Charges requiring the
| Jury to be reasonably satisfied by
| preponderance of the evidence are mis-
leading and properly refused
| IL Same: argumentative instruc-
tions.-Instructions stating no propo-
stition of law but merely augmentat
| tive, are properly refused.
70 Same; affirmative instruction.
Where the evidence is conflicting as
to any material issue, the affirmative
charge is improper.
10. Same: instructions already Civ
en.-Afthough instructions assert cor
rect propositions of law, it is not error
to refuse them If such propositions are
substantially covered by written in
structions already given
IA. Appeal; assignment of error; in
sistence upon Where there are a
mass of refused charges, statement OF
counsel in brief that many other
charges requested by the defendant
and refused by the court announced
the correct propositions of law under
the issues in the case" and that IAN
examination of a large number Of
charges refused to the defendant will
lead to the conclusion that many of
these charges were enormously re-
fused will not be regarded as such
an insistence upon the assignment as
to require the court to examine such
| charges not otherwise insisted on.
Appeal from Bessemer City Court
Heard before Hon. B. C. Jones.
Affirmed. Opinion by Weakley, c. il
HARRISON. Dowdell and benson. H.
nnnnu4