
    Memphis & Ohio Railroad Company vs. Lucinda Tugwell.
    Engineer of Railroad incompetent as a -witness without release. The Memphis & Ohio Railroad Company were sued for hilling the stock of the plain tiff; on the trial, the engineer, who had charge of the locomotive, and was running at the time, when the injury occurred, was offered as a witness for defendant, without a release from them; he was rejected by the Court. Held, that before the engineer of a railroad company, whose conduct is called in question, can be a witness for them, he must be released by the company, of all liability ? for damages to them, in the event of a verdict and judgment against them.
    from haywood.
    This cause was tried at the January Term, 1859. Vs. H. Stephen, special Judge, presiding. There was a verdict and judgment for the plaintiff.
    The defendants appealed.
    T. Cl. &. Wm. M. Smith, for the Railroad.
    Benj. F. Lee, for Tugwell.
   Wright, J.,

delivered the opinion of the Court.

The witness, John Long, rejected in this case by the Circuit Court, appears, in the bill of exceptions, to have been the engineer of the plaintiffs in error, on. their road, in charge of the locomotive, and running the train at the time the injury occurred to the stock of the defendant in error, for which the action was brought and recovery had. The matter in question, therefore, was his negligence and carelessness, and what it was proposed to prove by him, was,, to acquit the plaintiffs in error, and thereby himself, of all blame in the premises. This he was incompetent to do without a release, according to the opinion in the case of the Memphis & Ohio Railroad Company vs. Horne. No release appears to have been made, or attempted; and therefore the Circuit Judge did not err in rejecting this witness.

It follows that the judgment of the Circuit Court must be affirmed.  