Wickton v. Louisville & NR Co.
Decision Date | 22 December 1930 |
Citation | 45 F.2d 615 |
Court | U.S. District Court — Southern District of Mississippi |
Parties | WICKTON et al. v. LOUISVILLE & N. R. CO. |
Mize & Mize & Thompson and T. J. White, all of Gulfport, Miss., and W. J. Gex, of Bay St. Louis, Miss., for plaintiffs.
Smith & Johnston, of Mobile, Ala., for defendant.
Plaintiffs' intestate drove his automobile at a grade crossing in front of a fast-approaching train of defendant and was killed instantly. Alleging that the injury resulted from the failure of the railroad employees to ring the bell or blow the whistle and otherwise to use due care in operating the train, the heirs of the deceased brought this suit and obtained judgment.
The main facts surrounding the accident were disclosed by witnesses on the trial with reasonable certainty, but with some conflict as to the speed of the train and whether the statutory signals were given. The driver was alone in the car, and no one knows whether he saw the train or heard the signals, if the latter were given, but, if he had stopped and looked, before going upon the track, there was nothing to keep him from seeing the train. There was testimony for the plaintiffs that no signals were given and for the defendant that all were duly given. The verdict in the main might, and probably should, have turned upon this controverted issue of fact. It was the duty of the jury to give attention to the evidence and rationally to reconcile or solve the conflicting testimony. It was the constitutional right of the defendant to have them do so free from arbitrary legislative dictation.
In these circumstances, at the request of the plaintiffs, the court charged the jury that, if there was such a conflict of fact in the testimony as to prevent them from being able to determine how the injury was inflicted, then they might infer negligence on the part of the defendant and render a verdict for the plaintiffs.
The instruction in exact words was proper under the Mississippi prima facie statute, as construed by the highest court of the state in its latest decisions. Columbus & G. Ry. Co. v. Lee, 149 Miss. 543, 115 So. 782; Columbus & G. Ry. Co. v. Fondren, 154 Miss. 40, 121 So. 838. This statute in full is as follows:
Section 1580, Miss. Code 1930, section 1717, Hemingway's Code 1927.
The constitutionality of the above statute was directly attacked but upheld in Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 124 Am. St. Rep. 679, and, in the same case, in Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 138, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. In discussing the statute in the case just cited, the Supreme Court of the United States, after remarking that the law of evidence is full of presumptions either of law or fact, the former, of course, disputable, and that legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence quite within the general power of government, said:
In the Turnipseed Case, just quoted from, the injury was caused by a derailment of cars, in this case by a collision between a railway locomotive and an automobile at a grade crossing.
In Western & Atlantic Railroad v. Henderson et al., 279 U. S. 639, 49 S. Ct. 445, 447, 73 L. Ed. 884, a Georgia statute, which, upon the mere fact of such a collision, raised a presumption of negligence against the...
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