Gulf, M. & N. R. R. Co. v. Jones

• Citation: 137 Miss. 631,102 So. 385
• Decision Date: 03 January 1925
• Docket Number: 24172
• Parties: GULF, M. & N. R. R. CO. v. JONES et al. [*]
• Court: United States State Supreme Court of Mississippi

102 So. 385

137 Miss. 631

GULF, M. & N. R. R. CO. v. JONES et al. ^[*]

No. 24172

Supreme Court of Mississippi

January 3, 1925

Division B

1 RAILROADS. Testimony required to meet presumption of negligence from injury by running train.

Under section 1985, Code of 1906 (section 1645, Hemingway's Code), while proof of injury by running train is prima-facie evidence of negligence on the part of the defendant, before this presumption is met, all of the facts and circumstances surrounding the injury must be in testimony, and this testimony must negative negligence on the part of the defendant, these facts and circumstances may be proved, not only by direct testimony, but also by physical facts and circumstantial testimony.

2 RAILROADS. Evidence of negligence causing death held insufficient to go to jury.

In this case, the physical facts, direct and circumstantial testimony, show that the death of the deceased was not caused by any negligence on the part of the defendant railroad company.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.

Action by Mrs. Shad Jones and another against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and judgment rendered for defendant.

Judgment reversed.

Ellis B. Cooper, for appellant.

Green, Green & Potter and Clayton D. Potter, for appellees.

Briefs in this case not available to the reporter.

Argued orally by Ellis B. Cooper, for appellant, and Chalmers Potter, for appellee.

OPINION

SYKES, P.J.

The appellees, as plaintiffs in the circuit court, brought suit against the appellant railroad company for the negligent killing of Shad Jones, husband and father respectively of the plaintiffs. The cause was submitted to the jury, which returned a verdict in favor of plaintiffs for fourteen thousand dollars, upon which verdict judgment was entered by the circuit court, and from which judgment this appeal is here prosecuted.

At the conclusion of the introduction of all of the testimony the railroad company requested and was refused a peremptory instruction. This is one of the errors assigned in this court, and is the question upon which this case must be decided. It therefore becomes necessary to set out in detail the material testimony introduced. This testimony is practically uncontroverted.

On Sunday night, January 21, 1923, about eleven o'clock, the dead body of Shad Jones was found on the track between the steel rails of the defendant railroad company at a point about equidistant from two street crossings in the city of Laurel. The body was first discovered by the engineer of a freight train, whose train had come into Laurel about twenty or thirty minutes before the body was found. The head was to the north, the face was close to the east rail with one foot drawn up under the body. The right arm had been cut off about the wrist and the hand was several feet from the body on the other side of the rail. The other arm was broken in several places and one of the legs was possibly broken. Also a part of the skull was crushed in. There were also indications of blood on the track five or six feet north of where the body was lying. There had been a big rain during the earlier part of the night and a pretty good shower later on. Some of the outer clothing of the dead man was wet, but his underclothing was dry and the underside of his body was warm. He was dressed in a brown suit of clothes.

There was testimony that deceased was brought to Laurel that afternoon between five-thirty and six o'clock, and got out of the automobile at a place not a great distance from the tracks of the defendant railroad company. There was also testimony by a negro that he saw a white man with a brown suit of clothes board a moving car of a southbound freight train between ten and eleven o'clock that night. Another witness testified that he was riding on a gondola car of a southbound freight train at about this time, and saw a man climb on the open car in front of him and take a seat on it. That about this time there was a lurch or jerk in the train and that when he looked up the man had disappeared. This was about the place where the body of Shad Jones was found thirty or forty minutes later. Four trains passed over this track between five-thirty p. m. and ten-thirty p. m. that evening and night. We think it, however, only necessary to speak of the passenger train which passed there about nine-thirty or nine-forty and the freight train which passed there about ten-thirty. The testimony showed that the two engines on both these trains were examined, and no indications were found thereon to show that they had struck any one. There was some conflict in the testimony as to whether or not the proper statutory signals for crossings and the...