Louisville & N.R. Co. v. Cuevas, 29748

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: 139 So. 397,162 Miss. 521
• Parties: LOUISVILLE & N. R. Co. v. CUEVAS
• Decision Date: 01 February 1932
• Docket Number: 29748

139 So. 397

162 Miss. 521

LOUISVILLE & N. R. Co.
v.
CUEVAS

No. 29748

Supreme Court of Mississippi

February 1, 1932

Division B

1. RAILROADS.

Instruction invoking prima facie evidence statute, where locomotive struck plaintiff, held erroneous, where evidence showed [162 Miss. 522] all facts and circumstances respecting occurrence (Code 1930, section 1580).

2. TRIAL.

Rule respecting reading instructions together is not available, if in substantial particular instructions are contradictory or irreconcilable, especially where evidence is seriously conflicting.

3. TRIAL.

Rule respecting reading instructions together does not apply, where there is positive error in instruction, and another instruction is relied on to nullify error.

4. TRIAL. Erroneous instruction invoking prima facie evidence statute, where locomotive struck plaintiff, held not cured by instruction granted at railroad's request (Code 1930, section 1580).

The instructions, if read together, stated that, if jury were reasonably satisfied that all facts in reference to accident had been produced in evidence, then there was no presumption of negligence on part of defendant railroad, and jury should determine question as to whether there was negligence from all facts and circumstances shown by testimony, but, if there was such conflict of facts and theories between testimony of plaintiff and testimony of defendant as to prevent jury from being able to determine how injury was inflicted, then jury might apply inference of negligence against railroad company.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Hancock county HON. W. A. WHITE, Judge.

Action by James Cuevas against the Louisville & N. R. Co. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Smith & Johnston, of Mobile, Alabama, for appellant.

The court erred in giving the plaintiff the prima-facie evidence instruction.

N. O. & G. N. R. Co. v. Waldren, 133 So. 241; Western & Atlantic R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445; Wickton v. L. & N. R. R. Co., 45 F.2d 615.

Gex & Gex, of Bay St. Louis, for appellee.

An erroneous instruction can, and will, be cured by one that nullifies it and the instructions must be read as a harmonious whole, and where it is apparent that the case was tried properly on the law and that the instructions of the defendant cured or nullified errors in the instructions of the plaintiff, no possible harm is done.

City of Jackson v. Lewis, 142 Miss. 806; Hemming v. Rawlings, 144 Miss. 643; Alabama & V. R. Co. v. Fountain, 145 Miss. 515; Brewer v. Automobile Sales Co., 147 Miss. 603; Carlisle v. City of Laurel, 156 Miss. 410; Friedman v. Allen, 152 Miss. 377.

OPINION [139 So. 398]

[162 Miss. 523] Griffith, J.

Appellee, in attempting to cross the railroad tracks of appellant at a public highway crossing, was struck by a locomotive and injured. All the facts and circumstances of the occurrence were produced in evidence by numerous witnesses for both sides, but the evidence was conflicting on every...