Yazoo & Mississippi Valley Railroad v. Rivers , 93 Miss. 557 ( 1908 )

Whitfield, C. J.,

delivered the opiixion of the court.

This case was tried upon the third count of the amended declaration, and it is on this count that the verdict was rendered and the judgment entexud. We think the court below ruled correctly with respect to the statute of limitations. Substantially, the original declaration charged the same matter as tbe third count of the amended declaration. The second count of the origiaal declaration, in substance and judged fairly, was an effort to recover for tbe same cause of action set out in the third count of the amended declaration. But the court below undoubtedly erred in admitting the deposition of John Maynor for any purpose. It was admitted by the court below, as set out in the record, to show malice; but no just inference of malice can be drawn from that deposition. The admission of the deposition of G. B.' Ham was also manifest error, and, 'although the court subsequently excluded it on the following day, that deposition, most damaging to the defendant, remained with the jury overnight, and the error in its admission was not cured by subsequently excluding it, in view of its contents and the whole course of the trial. Railroad Co. v. Ely, 83 Miss. 519, 35 South. 873.

The now very common assignment of error that the cause should be reversed because of remarks of counsel has the usual lack of merit. There is nothing whatever in the point. We have heretofore remarked, and we do not see. why we should be called upon again and again to repeat it, that the twelve men who sit in the jury box are presumed to be men of common sense, honest, and desirous only of trying the case according to the law and the evidence, not according to the remarks of counsel, wise or foolish. The conversation at Jackson is the only conversation presented on this record for the consideration of the jury; not the one at MeComb City.

Bor the errors which have been indicated, the judgment is reversed, and the cause remanded.

Reversed.