Columbus & G. Ry. Co. v. Fondren

• Decision Date: 22 November 1926
• Docket Number: 25969
• Citation: 145 Miss. 679,110 So. 365
• Parties: COLUMBUS & G. RY. CO. v. FONDREN. [*]
• Court: Mississippi Supreme Court

110 So. 365

145 Miss. 679

COLUMBUS & G. RY. CO. v. FONDREN. ^[*]

No. 25969

Supreme Court of Mississippi

November 22, 1926

Division B

. (Division B.)

RAILROADS. Instruction relative to inference of negligence of railroad under statute held error, where testimony showed how crossing accident occurred.

In suit for injuries when automobile in which plaintiff was riding was struck by a train at public crossing, instruction under prima-facie negligence statute relative to inference of negligence against railway company held error, where testimony fully explained how injury occurred.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county, HON. J. I STURDIVANT, Judge.

Suit by T. L. Fondren against the Columbus & Greenville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed and case remanded.

Reporter's Note:--Elaborate briefs by Owen & Garnett, Will E. Ward and A. F. Gardner, for appellant and Daniel & Greene, for appellee, raised no new point of law. Pertinent decisions cited by counsel, are listed in the court's opinion.

Argued orally by T. C. Garnett, for appellant.

OPINION

HOLDEN, P.J.

The Columbus & Greenville Railway Company appeals from a judgment for two thousand dollars in favor of T. L. Fondren as damages for personal injuries received by him on account of being struck by a passenger train at a public crossing in Moorhead, while riding in a Ford coupe with three other persons.

Appellant urges several grounds for reversal, but we shall notice only one, and that is, whether or not the court erred in giving plaintiff certain instructions on our prima-facie negligence statute, which will result in a reversal, and the other questions may not arise on a new trial.

The facts of the case, so far as they are pertinent to a decision, are that appellee, Fondren, and three other young men were riding in a Ford coupe on the public road running parallel with the railroad, and when they reached a public crossing in Moorhead and attempted to cross the track just ahead of an approaching passenger train going in the same direction that appellee had been traveling before reaching the crossing, they were struck by the train, and appellee was seriously injured, for which he brought this suit.

There were many witnesses who testified in the case with reference to whether the bell was ringing and the whistle blowing as the train approached the crossing. There was a conflict in the testimony as to whether the statutory crossing signals were given by the engineer; there was also conflict in the testimony as to the condition of the crossing where the automobile was struck. The testimony of the witnesses in the case fully explained how the injury occurred, and it was the duty of the jury to pass upon the issues of fact under the conflicting testimony given and decide from the testimony alone whether or not the railroad company was guilty of negligence in striking appellee at the crossing.

In this state of case, the court granted the plaintiff three instructions on our prima-facie negligence statute, which read as follows:

(1) "The court instructs the jury for the plaintiff that if you believe from the testimony that plaintiff was injured by the running and operating of a train of the defendant, then, under the law, the establishment of this proof is prima-facie evidence that the injuries received by plaintiff were sustained as a result of the negligence of the defendant in the operating of its train."

(3) "The court charges the jury that where there is a conflict as to the facts and circumstances under which the injury was inflicted, and you are undecided from the evidence as to the true facts surrounding the injury, or if you are unable to say, after hearing all the testimony, just how plaintiff was injured in this case, then you have a right to infer that the injury inflicted on plaintiff in this case was because of negligent running of the train of defendant company, in which case you should render a verdict in favor of plaintiff. "

(5) "The court further charges the jury for the plaintiff that while proof of the injury to plaintiff by the running and operation of the train of defendant is prima-facie evidence that the same was the result of negligence of defendant, yet when you have heard all the facts and circumstances, if you can determine from such facts and circumstances whose negligence, carelessness, etc., was the cause of the injury, then this presumption of carelessness must yield to the facts, and you must decide the case upon the facts and not upon the presumption. However, if there is such a conflict of facts and theories between the testimony of plaintiff...