Mock v. Hines

Ethridge, J., delivered the opinion of the court. The appellant was plaintiff below and filed suit for a personal injury. The injury was caused by the appellant’s undertaking to cross a train in the village of Paden, and while passing across the train, which train ivas standing across the street or crossing, a movement of the train caused the injury to plaintiff’s foot. The appellant introduced an ordinance of the village prohibiting the blocking of the crossings in a municipality for a longer period than five minutes, and then took the stand in person and testified as to the fact of the train blocking the crossing and his undertaking to cross over the train and as to his injury. The appellant also introduced other testimony as to his injury. He did not testify as to the time that the train had been standing on the crossing when he attempted to cross the train. After he closed his case the defendant introduced evidence to show that the train had only stopped from one to two minutes at the time of the injury. At the conclusion of the defendant’s evidence plaintiff offered himself and other witnesses to prove that the crossing had been blocked by the train more than five minutes, but the judge excluded such evidence on the ground that it should have been introduced in chief and then, granted a peremptory instruction for the defendant, on which a judgment was entered, and from the said judgment this appeal is prosecuted. ' The appellant insists that it was error to reject this evidence, as all that he Avas called upon to prove in chief Avas the injury by the train to himself under section 1985, Code of 1906 (HemingAvay’s Code, section 1645). The plaintiff’s right to recover rests upon the fact that the crossing [116] was blocked for a longer period than five minutes, and he testified as to the facts other than the time in his evidence in chief. We think to recover on these facts the plaintiff must-prove the blocking of the crossing for inore than five minutes, and, as he testified in chief, he should have at that time disclosed these facts within his knowledge. Under the facts of this case we think the circuit judge had a right to exclude this evidence, offered in rebuttal ivhen it should have been offered in chief, and the judgment will be affirmed. Affirmed,