Mobile & O. R. Co. v. Bennett.
| Decision Date | 01 January 1920 |
| Docket Number | 22173 |
| Citation | 127 Miss. 413,90 So. 113 |
| Parties | Mobile & O. R. Co. Et Al v. Bennett. |
| Court | Mississippi Supreme Court |
APPEAL AND ERROR. Railroads. Jury's finding held contrary to evidence.
Where the finding of fact by a jury is contrary to the overwhelming weight of convincing evidence, a new trial will be awarded though such reversals are rare and reluctant.
HON THOS. B. CARROLL, Judge.
Action by Cecil M. Bennett against the Mobile & Ohio Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
J. M Boone and Sturdivant, Owen & Garnett, for appellant. Jno. F Frierson, for appellee.
The appellee, Bennett, sued and recovered judgment for four hundred dollars against the appellant railroad company as damages for personal injuries received on account of a collision between his automobile and the engine of appellant at a road crossing, from which judgment this appeal is prosecuted.
The appellant presents several grounds for reversal, but we shall notice only one, which will result in a reversal, and the other questions may not arise on the new trial, and that is that the verdict of the jury is contrary to the overwhelming weight of the evidence, and is therefore manifestly wrong.
We have carefully examined all the testimony in the case, and have reached the conclusion that the point is well taken. In substance, the overwhelming proof in the case shows that the appellee, Bennett, attempted to go over the railroad tracks at the crossing after he had been warned by the flagman and several others standing at the crossing not to do so; that the engine was moving down the track with reasonable care and caution, at a lawful rate of speed, with the bell ringing, while the flagman and others were shouting to appellee to stop before reaching the track upon which the collision occurred; that appellee was so warned by signals and by loud words is testified to by eight different witnesses, some of whom were outside, disinterested citizens who were present and saw and heard the warning.
It was daylight. Appellee could see and hear the warnings given, if given, and yet he proceeded to cross the track under these circumstances, and we are thereby led to the conclusion that the jury failed to give proper and reasonable consideration to the competent, reasonable, and unimpeached testimony of the eight witnesses whose...
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