Ethridge, J.,
delivered the opinion of the court.
Mrs. William J. Meyers, a resident of Memphis, Tenn., was a passenger on the train of-the-appellant on the 29th day of August, 1914, en route from Gulfport, Miss., to Memphis, Tenn. When about one hour’s run out of Jackson, Miss., Mrs. Meyers went into the ladies’ dressing room to make her toilet, and while standing in the said room the train of the appellant made a sudden jerk or lurch, by which she was-thrown violently against the washbasin, from which blow she received an injury in the side or groin, followed by hemorrhage and physical suffering. She said that she was stunned or dazed by the blow, and as soon as she was able she went into the car and sat down with her husband and complained to him of the injury, and-that she was sick and -suffered great pain throughout the trip and for some time thereafter. It is alleged that the effect of the injury was to produce a miscarriage and permanent injury, which necessitated the removal of one of the ovaries and fallopian tube. The operation necessary was performed in Memphis, Tenn., within a few days after the injury, and the plaintiff was, according to her testimony, permanently injured, and her testimony was supported by her family physician, who performed the operation. The husband supported the wife’s statement as to the violent jerk or lurch of the train, showing that it was an unusal jerk or jar of a violent character. The railroad company introduced proof that its track was in good condition, that its train was properly equipped with air and other appliances before leaving [470]*470Gulfport for this run, and that the engineer in charge-had long experience as a freight engineer, hut was not the regular passenger engineer, and had hut little experience in operating a passenger train. The engineer in charge of the train at the time of the injury was dead at the time of the trial, and the fireman had left the' employ of the company, and was not introduced as a witness. The conductor and flagman testified that they had no recollection of any such jerk or unusual jar or lurch of the train testified to hy the plaintiff and her husband. They did not testify as to the particular time-of the lurch, and it does -not appear that they had knowledge of the plaintiff’s injury to call their attention to the matter. The plaintiff gaye notice to the defendant of the taking of the deposition of Dr. F. D. Smythe of Memphis, who was present at the operation upon the plaintiff, filing interrogatories in the clerk’s office, and serving copy on the defendant. One of the attorneys-of the defendant took the copy of the interrogatories to Memphis, Tenn., caused Dr. Smythe to appear before a notary, had him answer the direct interrogatories- and then proceeded ore tenus to cross-examine Dr. Smythe, the attorneys for the plaintiff not being present at the time. The interrogatories filed with the clerk in due time were sent to Memphis by the plaintiff and Dr.. Smythe’s answers taken to the direct interrogatories, but there was no cross-interrogatories. Dr. Smythe had attended the plaintiff professionally prior to the operation, and had advised the operation, but testified that there was- a diseased ovary prior to the injury. The appellant offered the deposition of Dr. Smythe in evidence with the cross-examination taken by its attorney as above stated. On objection this was excluded, and the exclusion is assigned for error.
It is contended by the appellant that the testimony in the case does not warrant a verdict, it being contended' that the burden placed upon the company by the statute (Code 1906. section 1985) had been met by the showing [471]*471made, and there was a request for a peremptory instruction for the defendant, which was refused. Section 1985 of the Code of 1906, known as the prima-facie statute, makes the injury of a person by a running train or-ear prima-facie evidence of negligence, and places the-burden of proof upon the defendant to exonerate itself from negligence for such injury. In the present case there was no direct evidence as to whether or not the jerk or lurch, was caused by .applying too strongly the air, or as to whether the engine at the particular time was suddenly stopped or its speed violently increased' by application of more power. As above stated,, neither the engineer nor the fireman was available to' make this proof. It is clear that the jerk or lurch was-of unusal character, and it is highly probable that it was caused either by applying too strongly the air, or by a sudden jerking of the engine, or a sudden or undue increase of speed, and inasmuch as the -company has not shown how the engine and the air was operated, we think there was a failure on the part of the company to show freedom from negligence, and the peremptory instruction was rightly refused.
It is alleged that the trial court erred in refusing the following instruction for the defendant:
“The court instructs the jury on behalf of the defendant as a matter of law that jerks and jars of the railroad coaches are ordinary and necessary in the operation of railway trains, and for such injuries as may be received from jolts, jerks, or jars ordinarily and necessarily incident to the movement of trains the carrier is not liable because the risk of such injury is assumed by the passenger.”
The defendant secured sufficient instructions to cover this point in its given instructions. In the twelfth instruction the jury were instructed that plaintiff could not recover' unless a preponderance of the evidence shows to the satisfaction of the jury: First, that there was an unusual and extraordinary lurch, jerk, or jar to [472]*472the coach in'which the plaintiff was riding; second, that such unusual and extraordinary lurch, jerk, or jar was unnecessary in the proper operation of the train; and, third, that such unusual and extraordinary lurch of which the plaintiff complains, and if upon the consideration of all the evidence in the case the jury cannot say with reasonable certainty from a preponderance of the evidence that the plaintiff has established the affirmative or each and every of the issues enumerated, then in either such event it will be the duty of the jury to find for(tbe defendant. The jury were further instructed that though they should be convinced by a preponderance ■ of the evidence that there was a lurch, jerk, or jar to the coach in which the plaintiff was riding, and that such jerk or jar caused plaintiff to fall and receive the injury, still plaintiff is not entitled to recover any sum in this case, unless the preponderance of the evidence shows to the satisfaction of the jury that such lurch, jerk, or jar was extraordinary and unnecessary in the operation of the train at the time and place and under the conditions in question. We think these instructions carry the principle contended for as far as the law warrants their application to this case.
The appellant complains of instructions given on behalf of the plaintiff. The only one of these objections we think worthy of notice is the third instruction given the plaintiff, which reads as follows; ' 4
“If Mrs. Meyers was injured by the running car or train, then the burden of proof is upon the railway company to explain the cause of the injury, and this it cannot do by merely proving that its track was in good order and its equipment had been inspected at Gulfport and found in good condition.
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Ethridge, J.,
delivered the opinion of the court.
Mrs. William J. Meyers, a resident of Memphis, Tenn., was a passenger on the train of-the-appellant on the 29th day of August, 1914, en route from Gulfport, Miss., to Memphis, Tenn. When about one hour’s run out of Jackson, Miss., Mrs. Meyers went into the ladies’ dressing room to make her toilet, and while standing in the said room the train of the appellant made a sudden jerk or lurch, by which she was-thrown violently against the washbasin, from which blow she received an injury in the side or groin, followed by hemorrhage and physical suffering. She said that she was stunned or dazed by the blow, and as soon as she was able she went into the car and sat down with her husband and complained to him of the injury, and-that she was sick and -suffered great pain throughout the trip and for some time thereafter. It is alleged that the effect of the injury was to produce a miscarriage and permanent injury, which necessitated the removal of one of the ovaries and fallopian tube. The operation necessary was performed in Memphis, Tenn., within a few days after the injury, and the plaintiff was, according to her testimony, permanently injured, and her testimony was supported by her family physician, who performed the operation. The husband supported the wife’s statement as to the violent jerk or lurch of the train, showing that it was an unusal jerk or jar of a violent character. The railroad company introduced proof that its track was in good condition, that its train was properly equipped with air and other appliances before leaving [470]*470Gulfport for this run, and that the engineer in charge-had long experience as a freight engineer, hut was not the regular passenger engineer, and had hut little experience in operating a passenger train. The engineer in charge of the train at the time of the injury was dead at the time of the trial, and the fireman had left the' employ of the company, and was not introduced as a witness. The conductor and flagman testified that they had no recollection of any such jerk or unusual jar or lurch of the train testified to hy the plaintiff and her husband. They did not testify as to the particular time-of the lurch, and it does -not appear that they had knowledge of the plaintiff’s injury to call their attention to the matter. The plaintiff gaye notice to the defendant of the taking of the deposition of Dr. F. D. Smythe of Memphis, who was present at the operation upon the plaintiff, filing interrogatories in the clerk’s office, and serving copy on the defendant. One of the attorneys-of the defendant took the copy of the interrogatories to Memphis, Tenn., caused Dr. Smythe to appear before a notary, had him answer the direct interrogatories- and then proceeded ore tenus to cross-examine Dr. Smythe, the attorneys for the plaintiff not being present at the time. The interrogatories filed with the clerk in due time were sent to Memphis by the plaintiff and Dr.. Smythe’s answers taken to the direct interrogatories, but there was no cross-interrogatories. Dr. Smythe had attended the plaintiff professionally prior to the operation, and had advised the operation, but testified that there was- a diseased ovary prior to the injury. The appellant offered the deposition of Dr. Smythe in evidence with the cross-examination taken by its attorney as above stated. On objection this was excluded, and the exclusion is assigned for error.
It is contended by the appellant that the testimony in the case does not warrant a verdict, it being contended' that the burden placed upon the company by the statute (Code 1906. section 1985) had been met by the showing [471]*471made, and there was a request for a peremptory instruction for the defendant, which was refused. Section 1985 of the Code of 1906, known as the prima-facie statute, makes the injury of a person by a running train or-ear prima-facie evidence of negligence, and places the-burden of proof upon the defendant to exonerate itself from negligence for such injury. In the present case there was no direct evidence as to whether or not the jerk or lurch, was caused by .applying too strongly the air, or as to whether the engine at the particular time was suddenly stopped or its speed violently increased' by application of more power. As above stated,, neither the engineer nor the fireman was available to' make this proof. It is clear that the jerk or lurch was-of unusal character, and it is highly probable that it was caused either by applying too strongly the air, or by a sudden jerking of the engine, or a sudden or undue increase of speed, and inasmuch as the -company has not shown how the engine and the air was operated, we think there was a failure on the part of the company to show freedom from negligence, and the peremptory instruction was rightly refused.
It is alleged that the trial court erred in refusing the following instruction for the defendant:
“The court instructs the jury on behalf of the defendant as a matter of law that jerks and jars of the railroad coaches are ordinary and necessary in the operation of railway trains, and for such injuries as may be received from jolts, jerks, or jars ordinarily and necessarily incident to the movement of trains the carrier is not liable because the risk of such injury is assumed by the passenger.”
The defendant secured sufficient instructions to cover this point in its given instructions. In the twelfth instruction the jury were instructed that plaintiff could not recover' unless a preponderance of the evidence shows to the satisfaction of the jury: First, that there was an unusual and extraordinary lurch, jerk, or jar to [472]*472the coach in'which the plaintiff was riding; second, that such unusual and extraordinary lurch, jerk, or jar was unnecessary in the proper operation of the train; and, third, that such unusual and extraordinary lurch of which the plaintiff complains, and if upon the consideration of all the evidence in the case the jury cannot say with reasonable certainty from a preponderance of the evidence that the plaintiff has established the affirmative or each and every of the issues enumerated, then in either such event it will be the duty of the jury to find for(tbe defendant. The jury were further instructed that though they should be convinced by a preponderance ■ of the evidence that there was a lurch, jerk, or jar to the coach in which the plaintiff was riding, and that such jerk or jar caused plaintiff to fall and receive the injury, still plaintiff is not entitled to recover any sum in this case, unless the preponderance of the evidence shows to the satisfaction of the jury that such lurch, jerk, or jar was extraordinary and unnecessary in the operation of the train at the time and place and under the conditions in question. We think these instructions carry the principle contended for as far as the law warrants their application to this case.
The appellant complains of instructions given on behalf of the plaintiff. The only one of these objections we think worthy of notice is the third instruction given the plaintiff, which reads as follows; ' 4
“If Mrs. Meyers was injured by the running car or train, then the burden of proof is upon the railway company to explain the cause of the injury, and this it cannot do by merely proving that its track was in good order and its equipment had been inspected at Gulfport and found in good condition. In order to prevent her recovery, if she was injured by the running train or car, the railroad company cannot ask you to rely upon mere conjecture in the absence of proof as to the cause of the injury.”
[473]*473It is contended: First, that this instruction is upon the weight of evidence and invades the province of the jury; second, that it singles out and emphasizes certain portions of the testimony to the exclusion of Other salient features of the evidence; and, third, that plaintiff attempts to state a concrete case and omits several salient and es-. sential features of the evidence and the elements of the case. Abstractly taken, the instruction states the law correctly so far as it deals with the hypothesis stated therein. It would not exonerate the appellant to show merely that its track was in good condition, and that its equipment was inspected at Gulfport and found in good condition. While there was some evidence from the conductor and flagman to the effect that they did not notice any unusual jerk or lurch, and this is not referred to in the instruction, and while this hypothesis should have been incorporated to comply with the rule against singling out a portion of the facts, still we do not believe that it is reversible error, taken in connection with all the instructions of the case; and we think the instructions as a whole announce the law clearly as applicable to the case, and that the jury were not misled in this particular. The instructions both for the plaintiff and the defendant were full and complete, and the jury could not have been misled as to the law of the case.
It is next contended that the court erred in sustaining the objection to the introduction of the deposition of the witness Dr. Smythe. It seems that there was some misunderstanding of a verbal agreement between counsel as to what should be done in the taking of this deposition, but this court under its rules cannot recognize verbal agreements or settle disputes with reference thereto. It appears that counsel for the railroad company under some understanding of a verbal nature took his copy, of the interrogatories and went in person and cross-examined the witness, and that the attorneys for the other side were not present, and that the attorney for the defendant did not file written cross-interroga[474]*474tories, and the original copy filed with the clerk on which the plaintiff took the deposition was not crossed and was not offered in evidence. The appellant did not offer in evidence the answers to the original interrogatories filed with the clerk. The defendant could not have taken on its own part the deposition of Dr. Smythe for the reason that he had been consulted professionally by the plaintiff, and as the plaintiff did not offer the interrogatories and answers taken by it, and as the defendant did not offer this either, it is unnecessary to decide whether the defendant could offer the deposition of the physician against the objection of the patient or not.
We find no objection which warrants us in reversing the ease, and it is accordingly affirmed.
Affirmed.