The opinion of the court was delivered, by
Thompson, C. J.— There is no error in this record, excepting in the admission of the testimony, that the company built the public road on which the plaintiff’s husband was killed. It is, and has been a public road it appears, for a long time past; it was built some twenty years or so ago, and the supervisors have had charge of it as such. It appears from the testimony that this particular crossing is at a point which on account of the formation of the surface of the ground, and obstructions of standing timber, weeds and brush, is regarded as dangerous. If the evidence had any effect at all, as it most likely had, it was to create liability because of the location and construction of the road by the company. This was an entirely different ground of complaint from that laid in the narr. It was nothing more nor less, than superadding supposed negligence of twenty years standing to alleged, negligence in running their train where the accident occurred. That was a very remote ground of liability, and conflicted with the proximate cause laid in the narr. It cannot be disregarded on the ground of immateriality, for in the hands of able counsel much could be made out of it against the defendant. It was not necessary as showing the duty of care on part of the company at such a place. That was admitted by the regulations proved for whistling at the place; besides the surface of the earth would show that, independently of who constructed the road. The testimony was irrelevant and injurious, for its admission would induce a jury to believe it material. Counsel sometimes err by pressing too much into a case, as well as by offering too little. Being clear that there was error here the judgment below must be reversed.
Judgment reversed, and venire de novo awarded.-