It is alleged in the complaint, among other things, that the defendant was negligent, in that “the locomotive of the said defendant upon its said railroad was overloaded, causing it to stall,” &c.
Such negligence made one of the leading elements and constitutes part of the plaintiff’s alleged'cause of action, and it was material to prove on the trial that the locomotive driving the train on which the plaintiff was riding when he sustained the injury complained of was overloaded. The evidence to prove this fact was not very clear, strong and satisfactory, and evidence that the train tuas a long one would tend directly and materially to prove it, and in case of doubt might — would, no doubt — lead the jury to conclude that it was as alleged. There was no evidence produced on the last trial as to the length of the train; on the first one, it appeared that it was a long one, and when the Court read from the opinion of this Court, in the former appeal, that there was such evidence, without a word of caution or explanation, the jury might reasonably have understood the Court to instruct them that there was such'evidence for them to consider. Certainly the tendency of what was read to them as to the evidence in this very case was to mislead them, and we can see that that evidence, in connection with the other evidence as to whether or not the train was overloaded, may have been treated by the jury as controlling. If the train was not overloaded, and they so found the fact to be, they might have rendered a verdict in favor of the defendant. .We do not mean to suggest that they ought or ought not to have done so in that case.
The Court should, in connection with its reading from the opinion of this Court, have cautioned the jury that they could not, consider the evidence of the former trial, and that particularly there was no evidence on the last trial as to the length of the train. It was error to fail to do so, because the direct tendency was to mislead the jury — perhaps; materially. *460If it be said that the defendant’s counsel opght to have called the Court’s attention to the misleading tendency of the extract from the opinion mentioned read to the jury, it 'must be said in reply, that such suggestion might have force if objection was not made in apt time before the jury rendered their verdict. It does not, however, appear that objection was not made in apt time; on the contrary, the case stated on appeal shows that the exception was taken before the verdict was rendered, so that the Court had opportunity to make any corrections it deemed proper’.
Inasmuch as there must be a new trial, we deem it proper to add, in respect to other assignments of error, that we are of opinion that there was evidence to go to the jury tending to prove that the locomotive was overloaded, and of careless management of it; that the Court could not properly instruct the jury, in the light of all the evidence, that the injury sustained by the plaintiff was the result of a mere accident; nor should it have said to them that, in view of all the evidence, the plaintiff could not recover; nor that, accepting the plaintiff’s own evidence as true, he was chargeable with contributory negligence. What we said in the former appeal in respect to contributory negligence was appropriate to be said in.the last trial in view of-the evidence.
The defendant is entitled to a new trial.
Error.