Memphis & Charleston Railroad v. Bibb , 37 Ala. 699 ( 1861 )

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.

-[2.] 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in Nashville & Chattanooga Railroad Co. v. Peacock, (25 Ala. 230,) was materially modified, and some of its provisions repealed, by the later statute, of the same “title, approved February 6th, lS58.-NSee Session Acts ef 1851-2, p. 45"; and of 1857-8, p. 15.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.