95 Tenn. 311 | Tenn. | 1895
E. T. Stoneeipher brought this action to recover damages from the Cincinnati, New Orleans & Texas Pacific Railway Company for killing a team of horses on its unfenced track. The jury returned a verdict in favor of the plaintiff for $300, and the Court pronounced judgment for that amount, and all costs. The defendant appealed in error.
Stoneeipher owned two horses, which he used in hauling cross-ties to the road of the defendant. On June 18, 1892, after unloading his wagon, he started to the village of Sunbright. Being overtaken, on the way, by a rain and hail storm, he alighted from his wagon, hitched his team to a rail fence, and went into a neighbor’s barn for shelter. When the storm was over he discovered that his horses
Three grounds of error in the judgment below have been assigned by counsel for the railway company.
First. — It is insisted that the Court committed error in refusing to permit the witness, Clark, who was fireman on the colliding locomotive, to answer the questions whether or not it was possible for the engineer to stop the train and avoid killing the horses, after they could have been seen on the track by him, and what the engineer did, in fact, do to alarm the horses and to stop the train.
There are two distinct reasons why that action of the trial Judge is not reversible. (1) The questions asked were not competent, relevant, or material in this suit. The horses Avere killed in this State, upon an unfenced track, by a moving train of the defendant
To reverse a trial Judge for refusing to let a witness answer competent questions, the complaining party must show from the bill of exceptions what the witness would have said if permitted to answer, and it must further appear, as a matter of law, that the testimony offered was competent and material.
What the witness would say can be ascertained for the bill of exceptions, without prejudice to either party, by sending the jury out, and, in their absence, taking his answers; or the Court and counsel can in some other way learn and let the bill of exceptions show what the testimony would have been. Truslow v. State, ante, p. 189 (S. C., 31 S. W. R., 989). This Court has prescribed no particular mode by which it shall be done.
Secondly. — It is insisted that there is no evidence to sustain the verdict. To entitle a plaintiff to recover in a case like this, it is only incumbent on him to establish three things by proof: (1) That his horses were killed by the “moving train or engine or cars ’ ’ of the defendant, (2) that the collision occurred upon an unfenced track in this State, and (3) the value of the animals so killed. Acts 1891, Ch. 101, Sec. 2." All of these are abundantly shown in this case, the first two by witnesses of both parties and by admission of defendant in open court, and the third by the plaintiff and two ■ other witnesses called by him. The plaintiff says his horses were worth “about $350,” and the other two witnesses say they were worth $300. The verdict is for the latter sum..
It is well to' remark, in this connection, that the conditions mentioned in the recent case of Railroad
Thi'ritty. — It is insisted that the verdict is contrary to the charge of the Court.
This objection is practically the same as that last considered — that is, that there is no evidence to sustain the verdict. If the Court charged the jury correctly (as this objection assumes that he did), and the verdict is contrary to the charge, then the verdict is not supported by the evidence; it is not the verdict that should have been rendered under the law when properly applied to the evidence’, and, consequently, is not sustained by the evidence. The objection being the same in legal contemplation, it is met by the same answer — the verdict is abundantly sustained ' by the evidence.
Affirmed.