Southern Railway Co. v. Hays

Calhoon, J., delivered the opinion of the court. The sole point made in the brief for appellant is that the second charge for plaintiff below was erroneous, in that it places the burden of proof on the defendant, if the jury be satisfied that the mule was killed by the running of defendant’s train, to show the facts exculpating it from liability. We .cannot agree with counsel that this instruction interferes with any decisions treating of § 1808 of the code. If it did, the skill of counsel neutralized any misconception by his own numerous and adroit instructions. It is somewhat of a close question whether his peremptory charge should not have been granted on the facts, but, after careful consideration, we think we should not reverse for this. The action on admitting and excluding testimony was not vital, even if erroneous. It was very bad practice to permit plaintiff to hold out his most important witness until the defense closed, and then offer him on the main facts. Such a course might work great injustice, but in this case we do not feel authorized to reverse merely because of this. We do say, however, that thisjmurse should never be permitted unless the testimony was omitted in the opening because of necessity or inadvertence. Orderly [322] proceedings are ■ important to' the proper administration of' justice. Affirmed..