
    Utley v. Railroad.
    
      (Nashville.
    
    January 12, 1901.)
    Pleading- and Pkactioe. Issue narrowed by statement of parties.
    
    Where, on the trial in*the Circuit Court of an appealed case, commenced by Justice’s warrant describing the cause of action in general terms as “a plea of debt due by damages,” the parties, in response to an inquiry of the Court, make statement of the matter in controversy, the plaintiff stating that he sued for the wrongful killing of a horse by the defendant’s moving train, and the defendant stating that its defense was that it had observed all statutory precautions, all facts not put in issue by this statement will be treated as admitted, and the plaintiff is entitled to recover, if defendant fails to prove its defense, without other proof than that of value of the animal.
    FROM DAYIDSOIL
    Appeal in error from Circuit Court of Davidson County. J. W. BokkeR, J.
    PaRdtje & Bass for Utley.
    Smith & Maddih for Railroad.
   Wilkes, J.

This is an action commenced before a Justice of the Peace. The warrant states the cause of action as follows: “To answer the complaint of Lem Utley in a plea of debt due by damages” (killing a liorse).

In tbe Circuit Court, on appeal, tbe cause was beard before tbe Court and a jury, and at tbe close of plaintiff’s evidence it was demurred to,- and issue was joined on tbe demurrer, and it was sustained and suit dismissed, and tbe plain-tiff bas appealed and assigned errors.

Tbe bill of exceptions states that after tbe jury had been regularly impaneled and sworn to try tbe matters in controversy, tbe plaintiff, in response to an inquiry by tbe Court, said in tbe presence of tbe' Court and jury that bis cause of action was for tbe wrongful killing of plaintiff’s horse by one of defendant’s moving trains.

Thereupon attorney for defendant, in response to an inquiry from tbe Court, stated that bis-defense was, that defendant bad observed tbe precautions required by tbe statute. Tbe plaintiff then-introduced two witnesses who testified to substantially tbe same facts, . as follows: That plaintiff lived at Goodlettsville, Tennessee, about 600 feet-from tbe depot, at a place where tbe public road-crosses tbe railroad. Tbis public road is a turn- ■ pike going from Goodlettsville to Gallatin. It ' crosses tbe railroad track running north and south; - that plaintiff lives on the west side of tbe rail- ¡ road and. on tbe north side of tbe turnpike. One of tbe side tracks comes down to within a short distance of tbe turnpike crossing; that' plaintiff was absent from borne when his horse was killed, but on his return found him lying dead in a field just south of the turnpike crossing, and on the east side of the track; that the horse was killed December 18, 1898.

There is a cattle guard' at the south side of the turnpike,’ where the railroad crosses it, and the horse was found -dead beyond this cattle guard. The horse was worth $Y0. Plaintiff did not see the accident, nor know of it until he returned home. He turned the horse out to graze that morning. Plaintiff was in the habit of turning his horses out on the commons when not in use. The stable is just back of the house, and towards the depot. The horse was fifty or sixty feet from the fence, and south of the turnpike, and a few feet from the railroad track, lying in the ditch.

Mr. Peed, the section foreman, went with plaintiff to see the horse. Isaac Drake and plaintiff’s brother, John Htley, also saw him.

Plaintiff told Mr. Peed, the section foreman, that in order to settle the matter he could report the horse as worth $45 to the company. He agreed to Mr. Peed’s valuation, thinking he would get his money right away, without any trouble. Horse was fifteen hands high, gentle, sound, and all right. In substance, this was all the evidence.

It is insisted on the part of the defendant, railroad company, that this evidence does not make out a case of liability on the- -part of the railroad company, in other words, that the evidence does not go far enough; that the plaintiff’s proof fails to show how the horse was killed, or the nature' of his injuries, if he had any, or that it was the defendant’s railroad that passed by the place of the killing, or that any trains passed over it, or that the horse was struck by the train; that it is not shown that the track was unfenced where the horse was killed, or where it may have entered on the track; that the proof does not show that Reed, the section foreman, who valued the horse, .was foreman of defendant’s road.

It is insisted on the plaintiff’s part that .the controverted questions in the case were narrowed, by the. statements of counsel, to the simple question presented by the defendant’s statement. In other words, that when the plaintiff said his cause of action was the wrongful killing of plaintiff’s horse by one of defendant’s. moving trains, and the defendant replied that its defense was that it had observed all statutory precautions, it was an admission on the defendant’s part that one if its' moving trains had killed the plaintiff’s horse, and the only matter in issue left was whether the killing was wrongful, and this defendant denied by stating that it had observed the statutory precautions. The insistence is, that the case having originated before a Justice of the Peace, where there were no formal pleadings, the agreement became a substitute for and stood in the place of such pleadings, and subject to the rules governing pleadings in other cases; that plaintiff’s statement was his declaration, and defendant’s counter statement was his plea. Under such circumstances, and in such cases, the provisions of the Code, § 4631, it is insisted, apply that all allegations in the declaration not denied in the plea shall be taken as true for all the purposes of that issue, and the familiar doctrine, applies, as in pleadings in other law cases, that what is alleged in the declaration, and not denied by the plea, is conceded to be true. There is no statutory provision to the effect that in cases appealed from a Justice of the 'Peace, on hearing in the Circuit Court the. trial Judge may compel the parties to state their contention, but it is certainly an excellent practice, and where the requests are assented to by both parties the cause will be treated as submitted on the issues made by the statements. It is helpful alike to the Court, the jury, the attorneys and litigants that the issues shall be thus stated, in order that the scope and extent of the controversy may ,b& known and announced, and the evidence limited to matters which are in dispute.

The statements having been mad©, the controverted facts must be treated as being embraced in and bounded by the limits of the statements, and it is wholly unnecessary to introduce evidence beyond the facts which are controverted.

It is said by counsel for defendant that neither Court nor counsel considered the statements as constituting pleadings in the case, and subject to the rules of pleading, and that this is evidenced by the fact that the plaintiff, notwithstanding the statements^ proceeded to introduce evidence on many features that were conceded by the statement of defense, . treating it as a pleading. It is true that some evidence in this ease was introduced by the plaintiff, which was wholly unnecessary, but if this be conceded, it does not vary the rule, but the unnecessary evidence may be treated as immaterial.

Indeed, on the part of plaintiff there was but little, if any, necessity for introducing any proof except as to value. The ownership was not denied, and must be considered as conceded. The killing by defendant’s train was not denied, .and must be treated as admitted, and by the shape of the defendant’s statement it must be inferred that under the circumstances of the killing it was necessary to observe some statutory precautions, and that they were observed is alleged as an excuse for the killing, and a reason why no liability should attach.

To allow a different holding of the case would operate as a surprise and hardship on the plaintiff. The cause has been heard in this Court at a former term, wbe.n tbe facts were fully developed, and tbe cause was reversed and remanded for an error in tbe charge of tbe Court. It is evident that upon tbis latter trial tbe plaintiff did not attempt to fully develop and present tbe facts in tbe cause, and tbis was evidently upon tbe impression .that tbe issues bad been narrowed down and confined to tbe matters presented by tbe statements of counsel.

We are of opinion that in tbis view of tbe case the Court below was in error in sustaining tbe demurrer, there being sufficient evidence to fix a liability on tbe 'road and. no proof that any, statutory precautions were observed which would relieve tbe defendant therefrom, and that being, in our opinion, tbe only matter of controversy left open by tbe statements, tbe judgment of the Court below must be reversed, and tbe cause remanded for an assignment of damages on tbe evidence, unless tbe parties shall agree upon tbe same, and in ' that event final judgment will be rendered here.

■ The defendant will pay all costs.  