Duckett vs. The State.

of necessity far exceed the amount of the fi. fa., or even the amount for which the same is sold. There are but few instances where such property at these sales brings more than the taxes due and the accompanying costs, so that to hold that the law pursumes all such sales null and void, would be extending the principle beyond the limits of the law, and this we cannot do. The other questions made are unimportant in the view which we have taken of this case.

Judgment reversed.

DUCKETT vs. THE STATE OF GEORGIA.

I. That a horse was stolen, and a few days thereafter the defendant sold it some miles away, and made false statements as to the ownership and possession thereof, was sufficient to support a verdict of guilty of larceny.

2. Where an important fact was brought to the attention of the solicitor-general for the first time by the statement of the prisoner, there was no error in permitting him to reopen the case to show that fact.

Criminal law. Practice in the Superior Court. Before Judge MCCUTCHEN. Murray Superior Court. February Term, 1880.

Reported in the decision.

LUFFMAN & HARRIS; JOHNSON & MCCAMY, for plaintiff in error.

A. T. HACKETT, solicitor-general, for the state.

JACKSON, Chief Justice.

The defendant being found guilty of simple larceny in stealing a horse, moved for a new trial on two grounds, the first of which is that the verdict is not sustained by the evidence. The facts are that the

Stiles vs. The Atlanta & West Point Railroad.

horse was taken from the pasture where the prosecutor put him at night, and that defendant sold him at Chattanooga within a day or two afterwards, and said to the purchaser that he got him from his brother who lived in Murray county, Georgia-that he, defendant, had the horse about one month, and his brother about a year-that defendant lived in three miles of the pasture and knew all about the ownership of the horse, having often seen the owner working him. This evidence is abundant to authorize the conviction of the defendant.

The second ground is that the court erred in permitting the solicitor-general to recall a witness and prove a fact called to his attention for the first time by the pris oner's statement and in rebuttal of that statement. The testimony is in rebuttal, and if it was not, the court was right to reopen the case for an important fact to be proven on either side newly discovered by counsel, even after the argument had commenced, the status of the parties not being changed by the discharge of witnesses, or other action taken by reason of the formal closing the testimony. The ground of objection to its introduction urged before this court was that the evidence did not rebut the statement. We think it does rebut it; but if not, it was not error to admit it.

Judgment affirmed.

STILES VS. THE ATLANTA & WEST POINT RAILROAD,

Where defendant's passenger train was temporarily stopped some distance from the depot for receiving and delivering passengers until two freight trains in advance of it could be moved out of the way, and the plaintiff boarded such train in search of his wife and child, who were thereon as passengers, and in attempting to move from one car to another, by passing around an intervening car, stepped off the platform into a culvert fifteen or twenty feet deep, which he could not see on account of the darkness of the night, thereby sustaining serious personal injury, the company was not liable there

Stiles vs. The Atlanta & West Point Railroad.

for, even though the lights in some of the cars had been blown out by drunken and disorderly men. The exercise of ordinary care on the part of the plaintiff would have avoided the injury.

Railroads.

Negligence. Before Judge BUCHANAN.

Troup Superior Court. May Term, 1880,

Reported in the opinion.

FERRELL & LONGLEY; BIGHAM & WHITAKER, for plaintiff in error.

Cox & SPEER, for defendant.

HAWKINS, Justice.

C. A. Stiles brought his action for damages against the defendant, the Atlanta and West Point Railroad Company, in Troup county, on the twenty-seventh day of October, 1879. He claimed $15,000.00 damages, and alleged in his declaration that on the twenty-second day of August, 1879, at the depot of defendant, in LaGrange, Georgia, in said County, he bought a ticket for his wife and child, only four years old, to be conveyed to the city of Atlanta and return on said day. He put his wife and child aboard said train, and was then informed by the officers in charge of the same, that said train would return the night following said day, and which did return as stated, with Pierce Mims as the conductor, about twelve o'clock on said night, and instead of pulling up to the usual place of receiving and discharging passengers on the south side of the depot in said city, the train, by order of said conductor, stopped at the north of said depot. He boarded said train in search of his wife and child, and passing through said car without finding them, passed into the next ladies' car, which was crowded with ladies and children, and in which there was no light. The night was very dark. Petitioner passed nearly half way through said car, and on inquiry found his wife not

Stiles vs. The Atlanta & West Point Railroad.

He had no knowl

there. To keep off the children, he retraced his steps to go on the next car, not knowing that defendant had stopped its car immediately over an open culvert twenty feet deep. In descending from the steps he fell in the culvert, inflicting serious injuries, etc. edge of the existence of the culvert at the time. By reason of said injuries he suffered great pain, was permanently injured, and, as a physician, deprived of the power to pursue his profession.

To this action defendant pleaded not guilty, and that the injury was caused, not by any negligence of the defendant, but by the gross imprudence and negligence of the plaintiff.

A trial resulted in a verdict of one thousand dollars for the plaintiff.

The evidence was, in substance, about as follows:

The defendant advertised an excursion trip to Atlanta on the twenty-second day of August, 1879, and return. The plaintiff bought tickets for his wife and child four years old, and in the morning assisted them on board the excursion train bound for Atlanta. The train consisted of many coaches and a great crowd of passengers. On the return trip the train was much crowded with men, women and children, and many of the men were drunk. The train was delayed on its return, near the depot (some 360 yards) at LaGrange. The night was warm, drizzling and very dark when the train reached a place on its track 360 yards from the depot and platform where passengers were discharged and received. It was stopped by the officer in charge of the train on account of two freight trains in front discharging freights being on the track, thereby preventing further movement of the excursion train until the freight trains were moved. Under the steps of one of the passenger coaches was an open culvert twenty feet deep, constructed and used in the ordinary way by said railroad company. Plaintiff went to the depot to meet his wife and child and be their escort from thence home.

Stiles vs. The tlanta & West Point Railroad.

The train was delayed, and finding that the train containing his wife and child was standing in the rear of the freight trains, and they were still delivering freights, being anxious about his wife and child, and seeing many persons coming from said train, he went up the railroad track to where said train was standing, and boarded the train in search of his wife and child, went through one car, then on through another; lights in first car, none in second. Inquired for his wife, and was told she was not in that car; retraced his steps, went down steps of the car, stepped off bottom step and fell into the open culvert fifteen feet deep, receiving severe injuries, etc. Did not go on the excursion; knew where the depot and platform was where passengers were received and discharged; wife and child not hurt; no one hurt on train, and nothing unusual or exciting had occurred.

The evidence also showed that the train on its return was much crowded, many drunken men on board the same, who blew out the lights; the train was provided with lamps and candles; the night was warm, and though all efforts were made to keep the windows down and lights burning, they were constantly blown out by drunken men and the wind.

The evidence also showed that when the train stopped the conductor cried out to passengers," Don't get out, we are not at the depot yet." One witness said some one said get out, but the plaintiff did not hear that.

After verdict for plaintiff for $1,000.00, a motion was made by the railroad company for a new trial upon the ground that there was no sufficient evidence to support it, and various other grounds.

The judge granted the new trial upon the sole ground that the evidence was not sufficient in law to sustain the verdict, and, therefore, the same was contrary to law, and this is the error complained of by the plaintiff.

It is written in our law that a carrier of passengers is