McCorkle v. Illinois Central Railroad

Smith, J., delivered the opinion of the court. The evidence introduced by the plaintiff in the court below was excluded, and a peremptory instruction was granted, charging the jury to find for the defendant. No motion for a new trial was made; but an exception to [128] the action of the court in granting this instruction was taken at the time it was given, and, in due course, a bill of exceptions, consisting of the stenographer’s notes, embodying all of the evidence was filed. When an instruction is marked “Given,” or “Eefused,” and filed by the clerk, it becomes a part of the record; and, if duly excepted to at the time it was given or refused, the action of the court in giving or refusing the same may he reviewed in the supreme court on appeal, although no motion for a new trial was made. If the evidence in the ease is made a part of the record by a bill of exceptions, it will he looked to by the court in order to determine the correctness of the lower court’s ruling. Formerly such a hill of exceptions must have been taken and signed by the judge before the jury retired from the bar; hut under our present practice of having the evidence taken down by an official stenographer, and afterwards transcribed, this, is not necessary, but the stenographer’s notes, when transcribed and approved, becomes the bill of exceptions. Barney v. Scherling, 40 Miss. 320; Railroad Co. v. Chastian, 54 Miss. 503; Bourland v. Board of Supervisors, 60 Miss. 996; Alexander v. Flood, 77 Miss. 925, 28 South. 787. Under the evidence, it was for the jury to say whether Or not appellant was guilty of contributory negligence, and, consequently, the peremptory instruction ought not to have been given. Reversed and remanded.