delivered the opinion of the court.
Sincerely sympathizing with the very unfortunate appellant, we are yet constrained by duty to agree in opinion with the learned judge before whom this case was tried below as to the *836effect of appellant’s evidence offered in chief to sustain his cause of action. It had clearly shown the appellant’s contributory negligence, and, if the railroad company had offered no evidence when the plaintiff closed, the defendant would have been entitled to verdict, as the court below justly observed. But after the appellee had introduced its evidence and had rested, the fact of the appellant’s contributory negligence remained perfectly manifest. Then counsel for appellant, in response to the inquiry of the court as to whether he had any further evidence to offer, expressed his desire to introduce the plaintiff himself, who had not testified in chief, to explain why he attempted to pass over the crossing, where he was injured, at the time and place he did, and, in rebuttal of defendant’s evidence intended to show contributory negligence on the part of plaintiff. Thereupon the court remarked that the plaintiff should have been introduced in the first instance, and that he would not' then be permitted to testify to any facts not in rebuttal. The evidence of plaintiff’s witnesses had shown the contributory negligence of plaintiff. He closed his case while in this attitude, and the defendant was clearly entitled to a peremptory charge. This was not then asked, however, and the defendant uselessly showed the same fact by other witnesses. Then the plaintiff desired to take the stand and testify for the purpose of showing that he had not been guilty of contributory negligence, and this the court declined to permit.
The order of judicial investigation, including the time and manner of introducing evidence, is, and of necessity must be, committed to the sound discretion of the trial judge, and appellate courts should not interfere to reverse the exercise of this discretion by a trial court unless such exercise appears to have been had arbitrarily, capriciously or unjustly. Was the exercise of the discretion in this case arbitrary or unjust? Far otherwise, in our opinion. It was in strict conformity to long-established rules governing the introduction of evidence, and, in this instance, simply denied to plaintiff an almost unheard-of *837request to so alter a vital phase of his case, as already made out by the evidence of his own witnesses, not only or chiefly so as to meet the case made by his adversary, but also, and necessarily, to destroy the very case he himself had already deliberately made out. This would not have been evidence in rebuttal, and the court prudently and wisely refused to permit plaintiff to then take the stand, and, for the first time, attempt to show that he was free from contributory negligence. We see no abuse of judicial discretion in this action of the court, and, much as we deplore the injury suffered by the appellant, and deeply .as we have been impressed by the zeal, ability, and learning of the argument of his counsel, we feel we cannot reverse the judgment without ourselves arbitrarily exercising the power so to do which is lodged in this appellate court for exercise only in exceptional cases. On the case as actually made out in the court below, there was only one verdict which could have been allowed to stand, and this the learned judge properly instructed the jury to find.
L. L. Pearson, for the appellant, Filed a suggestion of error, in which he very fully presented the view that the evidence for the plaintiff did not show contributory negligence, together with other points previously made.Affirmed.
Suggestion of error overruled.