115 So. 115 | Miss. | 1928
At the trial, it was admitted that the appellee was the owner of the mules sued for, and that they were killed by the appellant's passenger train No. 40. The appellee offered testimony to show the value of the mules, and rested his case. The appellant then offered the testimony of the engineer who was in charge of the train, and he testified that on the morning of the 19th of February, 1927, when the mules were killed, the train was going north toward Corinth; that the engine was properly equipped with headlight, brakes, and all modern improvements *46 of engines, and that the engine and its equipment were in perfect working order; that the accident happened about two-thirty o'clock a.m., and it was raining at the time; that the mules were struck about sixteen hundred feet north of the depot at Paden; that from the south switch in the town of Paden to the north switch, near which the mules were killed, the railroad track is straight; that from the time the train passed the south switch he was looking straight ahead, but did not see the mules until the train was within about seventy feet of them; that when he first saw the mules, some of them were on the passing track, others between the main line and the passing track, the distance between these tracks being about ten feet; that just as he saw the mules they turned to the west in an attempt to cross the main line track, and were struck by the train before he had time to do anything to avoid striking them. The fireman testified that the signals for the crossing in the town of Paden were given and the bell was rung, and that he was in his seat on the left side of the engine and was looking ahead, but did not see the mules.
At the close of the appellant's testimony, the appellee offered to prove by two witnesses that they examined the railroad track on the morning that the mules were killed, and they discovered mule tracks on the main track of the railroad which indicated that the mules ran on the track about one hundred and fifty yards. This testimony was objected to as not being in rebuttal, but as being substantive testimony, which should have been offered before the plaintiff closed his case. This objection was overruled and the testimony admitted. The appellant then offered three witnesses by whom it proposed to prove that they visited the scene on the morning after the accident, and there were no mule tracks on the railroad for a distance of over one hundred feet south of where the first mule was struck. This testimony was objected to, and the objection was sustained on the ground that it was substantive testimony which should have been introduced *47 as a part of appellant's case in chief, and one of the assignments of error is based upon the action of the court in admitting as being in rebuttal the testimony offered by the appellee after the appellant had closed its case, and refusing to permit appellant to introduce similar testimony to meet that offered in rebuttal by the appellee.
We think the evidence offered in rebuttal by the appellee was substantive evidence which tended to establish the liability of appellant, and that it should have been offered, if at all, as a part of appellee's case in chief. It is generally held, however, that it is within the discretion of the court to admit in rebuttal evidence which properly should have been introduced in chief, and, while this practice has been repeatedly condemned by this court, it will not be held to be reversible error unless this discretion is exercised to the prejudice of the rights of the adverse party.
When a plaintiff is permitted to introduce in rebuttal testimony which properly should have been introduced in chief, it is error to decline to permit the defendant to reply to this new matter by introducing testimony in surrebuttal. In the case at bar we think it was reversible error to refuse to permit the appellant to reply to the new matter introduced by the appellee in rebuttal.
Reversed and remanded.
