Opinion of the Court by
Reversing.
Logan Evans was a brakeman on a freight train in the service of the Cincinnati, New Orleans & Texas Pacific Railway Company. When the train reached a station called Flat Rock, the conductor was notified by the station agent to move a car which stood on the side track, and put it at another point for loading. There were 10 or 12 cars in front of this car. So, to do wha.t was wanted, they cut the engine off from the train, and went in with it on the side track and coupled to the cars. They then pulled out these cars, having the car they wanted to move at the rear, and backed it on the main track, where Evans cut off this car from the others; the plan being to put the other 10 cars back on the side track, and then to come back with the engine and get this car and put it at the place where it was needed. After Evans had cut off the car, the engine pulled up the main track with the
When the case was called for trial, the plaintiff’s attorney declined to make a statement to the jury of the facts which he expected to prove. The defendant’s attorney objected to this, and asked the court to require the plaintiff to make a statement. The court declined to do so, and the defendant excepted. Section 317 of the Civil Code of Practice is as follows: “When the jury has been sworn the trial shall
What statement of facts the plaintiff’s counsel will make is necessarily a matter for him to decide. He can make it more or less elaborate as he sees proper. Often in practice the statement is made by simply reading the petition to the jury or by stating the substance of it. The court will not usually control the brevity of the statement the counsel may make; jthat is, he may make it as brief as he pleases, and therefore the making of the statement is ordinarily a matter left entirely within the discretion of counsel. Our observation is that in practice the making of the statement is a matter to be determined by counsel, and that the section of the Code is regarded as prescribing the order of the proceeding, rather than as requiring a full statement of the facts to be made by counsel. At any rate, it is a matter resting in the sound discretion of the court, and we do not see how the defendant’s substantial rights were injured by the action of the court in refusing to require the counsel to make a statement of the facts which he expected to prove. It is provided in the section that the party on whom rests the burden of proof in the whole action must first produce his evidence. But manifestly if he de
The plaintiff introduced as a witness on the’ trial Fred C. Crouch, who said that he was sitting about 30 feet from the track and saw Evans thrown from the car and run over; that he at once went to the engine, reaching the engineer in about a minute, and told him he had killed one of his brakemen back there; that the engineer then said: ‘ ‘ That is the way whenever I get mad. I either hurt or kill somebody.” The defendants objected to this evidence, and moved the court to exclude it from the consideration of the jury. The court refused to exclude the evidence, and to this they excepted. In McLeod v. Ginther, 80 Ky. 399, 4 Ky. Law Rep. 276, there was a collision between two passenger trains. To the first man who met him the conductor of one of the trains said : “I had until 10:10 to make Beards.” The evidence was held competent. In L. & N. R. R.Co. v. Shaw, 53 S. W. 1048, 21 Ky. Law Rep. 1041, Shaw had fallen from a passenger train. A man near by heard his cries, and went to him. "What he then said to this man, the first person to reach him while the departing train was still in sight, veas held admissible as res gestas. In Brown v. Louisville R. R. Co.., 53 S. W. 1041, 21 Ky. Law Rep. 995, the declarations of the plaintiff at the place where she fell were admitted, but. her declarations while passing down the street on her way home were rejected. In
At the conclusion of the evidence for the plaintiff, the conductor, John Bowman, -moved the court to instruct the jury to find for him. The court sustained the motion, and, when this had been done, the railroad company filed its petition and moved the court to transfer the case to the circuit court of the United
The court instructed the jury, in substance, that, if Evans’ death was caused by the gross negligence of the engineer, they should find for the plaintiff, pro
Judgment reversed, and cause remanded for a new trial.