
    The Louisville & Nashville Railroad Company v. O. P. Parker.
    1. Bailboad. Practice. Evidence, After the plaintiff, in an action against a railroad company for killing stock, had established his prima facie case, and the railroad company had closed its exculpatory evidence, it was not error to permit the plaintiff to introduce witnesses again, to show the nature of the accident, and that the necessary precautions had not been observed.
    2. Ebbob. As to point of practice. The Supreme Court will not reverse for error upon a point of mere practice.
    EKOM HIBSON.
    From the Law Court of Humboldt, July Term, 1872. G. B. Black, Judge.
    
      W. J. McFarland for plaintiff.
    H. T. Johnson for defendant.
   Sneed, J.,

delivered the opinion of the court.

This action is to recover from the Louisville and Nashville Railroad Company the value of a horse run over and killed by the company’s train. The verdict and judgment were against the company, from which an appeal in error was taken. The error assigned is, that after the plaintiff had closed his evidence in chief, by which the killing and the value of the animal were shown, and after the defendant had closed its testimony tending to show the character of the accident, and that the statutory precautions had been observed, the court permitted the plaintiff to introduce witnesses again, to show the nature of the accident, and that the precautions had not been observed.

In this there was no error. It is incumbent on the plaintiff in such cases to prove only the killing by the train; and when this is done the statute throws upon the company the burden of excusing itself, by showing that all the statutory precautions were in fact observed. Code, sec. 1169. Having attempted this, the plaintiff had a right to show otherwise, as he did in this case, and also to rebut the testimony of the defendant as to the character of the accident itself.

And even if this were not so, we could not reverse upon a matter of mere practice, where the merits of the case have clearly been attained by the verdict of the jury.

Affirm the judgment.  