Seaboard Air Line Ry. v. Smith plaintiff for $1,750, a judgment entered for that amount and costs against the defendant. From this judgment a writ of error was sued out. Other pertinent facts will be stated in the opinion. Geo. P. Raney, for plaintiff in error. F. P. Cone, for defendant in error. HOCKER, J. (after stating the facts). The first assignment of error is based on the ruling of the court refusing to except Baya Harrison from an order excluding all the witnesses from the courtroom during the trial. The defendant moved to except Mr. Harrison because he was not only a witness for the defendant, but also because he had prepared the case for the trial, and stood in the position of client as a direct representative of the defendant. The plaintiff objected to this motion, and it was denied. The sequestration of witnesses from the courtroom is a matter for the exercise of a sound judicial discretion by the trial court, and its action will not be disturbed unless it appears there has been an abuse of such discretion. The condition of the law on this subject seems to be fairly stated in 3 Wigmore on Evidence, § 1841. It would seem that a party to the cause should not ordinarily be excluded from the courtroom because he is also a witness, and this doctrine would apply to the agent of a corporation whose duty it was to look after the interest of the corporation in the case on trial. See Seaboard Air Line Ry. v. Scarborough (decided June term, 1906, of this court). 42 South. 706. In the case at bar, however, Mr. Harrison was not excluded from the courtroom during the trial. He was not put on the stand as a witness, and nothing was offered to be proved by him. It does not appear. therefore, that the defendant was injured by the ruling of the court. Lenoir Car Co. v. Smith, 100 Tenn. 127, 42 S. W. 879; The Barke Havre, 1 Benedict's Dist. Ct. Rep. (U. S.) 295, Fed. Cas. No. 6,232; Central Railroad & Banking Co. v. Phillips, 91 Ga. 526, 17 S. E. 952; Ryan v. Couch, 66 Ala. 244; 1 Greenleaf on Ev. (16th Ed.) §§ 432, 432a. The second assignment of error is based on the action of the court in permitting the plaintiff to prove by his testimony that at the time and place of the alleged injury he was walking on the track of the defendant's railroad. The contention is that the declaration does not allege that he was walking on the track when injured, but that "he had occasion to walk a short distance on the railroad track of the defendant." We think that this allegation, taken in connection with the one that he was struck and run over, shows that he was on the track when injured. The third and fifth assignments are based on the action of the court in permitting witnesses who were not experts to give their opinions as to the speed the train was running which struck and injured the plaintiff. One of these witnesses had "railroaded" for 16 years, and the other had been traveling on trains for 20 years. We do not think the contentions made are ten Seaboard Air Line Ry. v. Smith able. Louisville & N. R. Co. v. Jones, 50 Fla. 225, 39 South. 485; 3 Wigmore on Ev. § 1977, note 2. The fourth assignment of error is not argued. The sixth assignment is based on the action of the court in granting the motion of the plaintiff to strike from the evidence. Ordinance No. 17 of the city of Lake City, and to withdraw the same from the consideration of the jury, over the objection of the defendant. The ordinance had been introduced by the defendant and is as follows: "Speed of Trains. "Section 1. It shall be unlawful for any railroad company to run or operate its engines or trains within the corporate limits of Lake City with or at a greater speed than as follows, to wit: eight miles an hour within one-fourth of a mile of its passenger station, and fifteen miles an hour within one-half mile of its passenger station. "Sec. 2. It shall be unlawful for any engineer or conductor to operate or run an engine or train within the corporate limits of Lake City at a greater rate of speed than eight miles an hour within one-fourth of a mile of its passenger station or fifteen miles an hour within one-half a mile of its passenger station. "Sec. 3. Any corporation or person violating the provisions of this ordinance shall be punished by a fine not exceeding twenty-five dollars or imprisonment not exceeding ten days." The grounds of the motion were that the corporation of Lake City possessed no authority under its charter or under the law to make or enforce said ordinance within its corporate limits; the subject being exclusively regulated by the statutes of the state. The contention here of the defendant in error is that the ordinance is merely a police regulation that would not relieve the plaintiff in error from liability. We are referred to no statute in this state which would deprive the city of authority to pass and enforce such an ordinance in its entirety. The only statute which seems to bear upon the question which we have found is section 2264, Rev. St. 1892. That section is as follows: "Every railroad company whenever its track crosses a highway shall put up large sign boards at or near said crossing with the following inscription in large letters on both sides of the boards, 'Look out for the cars.' In all incorporated cities the said company shall cause the bell on the engine to be rung before crossing any of the streets of a city, and their trains shall not go faster through any of the traveled streets of a city than at the rate of four miles per hour." It is plain that the first sentence of this section does not apply to the streets of a city, for the subsequent sentence provides the precaution to be used before crossing them, viz., that the engine bell shall be rung. This last sentence in its last clause then provides a speed limit of four miles through the traveled streets of a city. This clause does not seem to be intended to fix a speed limit where a track simply crosses a street, and is not located upon a street. To give it such a Seaboard Air Line Ry. v. Smith construction might, in some instances, make the law unreasonable. We think it was intended to fix the speed limit where a railroad track is located upon a traveled street, where the danger of injury to persons is greatest and where the greatest precautions are necessary. In so far as the ordinance conflicts with the statute, it would, of course, be inoperative. It could not apply to the speed of a train running on a traveled street. But the ordinance undertakes to limit the speed of trains within the entire corporate limits to 8 miles an hour within one-fourth of a mile of the passenger station, or 15 miles an hour within half a mile of the passenger station. It is apparent that the ordinance is much broader than the statute. As to the power of the city to pass the ordinance having this broader application, it seems to us that it is ample. Section 33, c. 5350, p. 425, Laws 1903, amending previous acts chartering the city of Lake City, gives the city power to pass "all ordinances necessary to the health, peace, convenience, good order and protection of the citizens." Independent of this provision, it would seem that the city had power to pass and enforce such an ordinance as a police regulation. 3 Abbott's Municipal Corporations, §§ 853, 854; Evison v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 45 Minn. 370, 48 N. W. 6, 11 L. R. A. 434, and note. It is in proof in the case at bar that the plaintiff was injured at a point in the city limits 2,026 feet from the passenger station, in the trackyard of the Seaboard Air Line and the Atlantic Coast Line Railroad Companies, somewhere between 100 and 425 feet of a street crossing. There was proof tending to show that the train which injured the plaintiff was running at from 10 to 12 miles an hour, and other proof tending to show a greater speed. The defendant was charged with negligently running its train at a great rate of speed at the time the injury occurred. The question of negligence was to be determined by the jury, and whether the train was or was not exceeding the speed limit of the ordinance entered into the question of its negligence. Its own testimony in connection with the ordinance tended to relieve the defedant of negligent conduct in this regard, and, without meaning to say that compliance with the ordinance would exempt a railroad company from the charge of negligence under all circumstances, we think in this case the ordinance was competent evidence, as no extraordinary conditions existed which would have imposed on the company a greater degree of care than that imposed by the ordinance; for, as we have said, the injury occurred in the trackyards, and not upon a street or crossing, in open daylight, and under circumstances which show great negligence on the part of the plaintiff. Only one person besides the plaintiff appears to have been walking in the trackyard at the time. The plaintiff appears to have been a young man in the full possession of his faculties. He was walking heedleesly along on the track of the Atlantic Coast Line Railway. He saw the Atlantic Coast Line passenger train coming on this track, and, without looking or taking any sort of precaution, he went diagonally Seaboard Air Line Ry. v. Smith across to the track of the defendant, and stepping almost in front of a moving train, was knocked off, and injured. Seventh assignment of error: The plaintiff propounded this question to Ben Jones, one of the witnesses, viz.: "Up and down. these two tracks and on these two tracks running from Marion street up to where this man was hurt, I ask you if that is or is not frequently used by people walking?" The answer was, "Yes." This question was objected to as leading and as being irrelevant and immaterial. The record does not otherwise describe or identify Marion street. The plaintiff in his brief contends that it is identified by the map filed by the defendant. The map shows a street crossing the tracks near the point where the plaintiff was injured, but no name is given it. This matter should not have been left in obscurity. That a question is leading is no ground for reversal. Anthony v. State, 44 Fla. 1, 32 South. 818. Eighth assignment of error: "The court erred in denying the motion of the defendant to withdraw the case from the jury and declare a mistrial, by reason or on account of the statements of the plaintiff's attorney in his argument to the jury, as shown on page 5 of the bill of exceptions." The plaintiff's attorney in his argument to the jury said "that the plaintiff, a poor negro, who, if he did not get damages out of the defendant railroad company to support him the balance of his life, would be a ward on the county; that the amount of money sued for would not be missed by the defendant, nor would they stop their champagne suppers in consequence of their junketing trips, and also stated that by the reports of the Interstate Commerce Commission there had been many thousands of deaths and injuries by accidents by railroad during the last year." The defendant objected to this method of argument as calculated to prejudice the jury against the defendant, and moved the court to withdraw the case from the jury and order a mistrial. The court sustained the objections to the quoted argument, but denied the motion to declare a mistrial. The judge orally instructed the jury as follows: "You are not to try this case by the number of accidents, or the death rate for or in other states or this state by Railroad Commissioners or otherwise, but you are to try this case solely by the evidence, and you are not to allow this statement of facts to enter into your consideration in your verdict." There was no exception to this oral charge, as being insufficient to correct and remove the prejudice naturally excited by the language of the plaintiff's attorney. We will say, however, that in our opinion it was insufficient. It ought clearly to appear that the court took such action as was sufficient to remove the prejudice and meet the exigencies of the case. Verdicts ought not to be won by such arguments. Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 16 South. 538; Galveston, H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643, 11 S. W. 127. No authorities are cited to sustain the contention that it was as a matter of law the duty of the court to discharge the jury because of the objectionable language. It may be that the abuse of argument can be so aggravated as to Seaboard Air Line Ry. v. Smith be beyond the power of correction and to impose this duty on the court. We are disposed to think, however, that the question in the case at bar should have been brought here on an assignment based on the fact that the judge's correction was insufficient to overcome its prejudicial effect. Commonwealth v. Worcester, 141 Mass. 58, 6 N. E. 700. The ninth assignment of error is based on the refusal of the court to give an instruction for the defendant which evidently was intended to embody the doctrine contained in the eighth headnote in the case of Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 South. 558, and which doctrine was clearly applicable to this case. The instruction, however, as presented, was ambiguous, and no error was committed in refusing to give it. Assignments 10 and 11 are based on the refusal of the court to give instructions which in effect directed the jury to find a verdict for the defendant, if they believed that the plaintiff was guilty of any negligence, and the injury received by him was caused by such negligence. These instructions ignore the effect of any negligence on the part of the defendant, if the jury should find it was guilty of negligence, and were properly refused. Florida Cent. & P. R. Co. v. Williams, supra. Assignment numbered 12 is based on the refusal of the court to give the following instruction: "If you believe from the evidence that the engine and train of the defendant was, at the time and place of the accident, being managed and propelled by the company's engineer and others of its servants than in charge of the train, and that the schedule and regulations adopted by the company regulating [regulated] the speed of its trains at that place, and that such regulations required its trains to be run at a rate of speed not exceeding six miles per hour, and that the said engineer and other servants of the defendant in charge of the said train violated said order and regulations and propelled the engine and train at an unlawful rate of speed, in disobedience of such orders and regulations of the company, and that there was no negligence imputable to the defendant other than such excessive speed of the train, then your verdict should under the plaintiff's declaration in this case be in favor of the defendant.' The engineer stated in his testimony that the regulations of the company fixed the speed limit in the railroad yards at Lake City at six miles an hour. He also admitted that at the time of the injury to the plaintiff his train was rolling in without steam pressure at the rate of 10 or 12 miles an hour. The plaintiff's evidence tended to show the train was running at the rate of from 15 to 20 miles an hour. Granting that there were but two persons to be seen walking in the railroad yard on or near the tracks at the time of the accident, and that there was no occasion for extraordinary precautions, yet the city ordinance, as before stated, fixed the speed limits, and, if the speed at which the train was running was in excess of that fixed in the ordinance, it would be evidence of some negligence on the part of the company. It was for the jury to determine whether such |