Armstrong v. Gulf & S.I.R. Co.

• Decision Date: 12 November 1917
• Docket Number: 19411
• Citation: 76 So. 624,115 Miss. 698
• Parties: ARMSTRONG v. GULF & S. I. R. CO
• Court: Mississippi Supreme Court

76 So. 624

115 Miss. 698

ARMSTRONG v. GULF & S. I. R. CO

No. 19411

Supreme Court of Mississippi

November 12, 1917

Division B

APPEAL from the circuit court of Rankin county, HON. J. D. CARR Judge.

Suit by L. R. Armstrong against the Gulf and Ship Island Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

S. L McLaurin and Hilton & Hilton, for appellant.

Mayes, Wells, May & Sanders, for appellee.

OPINION

COOK, P.J.

The appellant sued the appellee railroad company for injuries resulting to him by the alleged negligent operation of a motor car. At the conclusion of the testimony offered by both sides to the controversy, the learned circuit judge, at the request of appellee, defendant below, peremptorily instructed the jury to return a verdict for the defendant. The jury returned the verdict thep were directed to return, and from the judgment on the verdict the plaintiff appeals to this court.

The facts disclosed by the record, briefly summarized, are as follows: The plaintiff was a carpenter, and belonged to a crew working under the control and direction of a foreman, repairing bridges of the appellee. This crew was transported to and from its work on a motor car weighing something like one thousand two hundred pounds. The motive power of the car was gasoline, and the car was operated by the foreman. Camp cars, for the feeding and housing of the crew, were located at Jackson. On the day the plaintiff was injured, the crew, aboard the motor car, were returning to Jackson from some point south of Jackson. The car was running about thirty-five miles per hour, according to evidence offered by plaintiff, when some one on the car discovered that they were approaching an open switch and gave the alarm, whereupon plaintiff and two others of the crew jumped off the car and plaintiff was seriously injured. The car passed through the switch safely, and, had the plaintiff remained on the car, he would not have been injured.

The appellant, plaintiff below, contends that it was negligence to run the motor car through the open switch at the rate of speed it was going; that the danger to the life and limb of plaintiff was reasonably apparent to any prudent person situated as he was, and, being confronted with this danger he jumped to save his life. We think the evidence amply supported the theory of plai...