Mobile & O. R. Co. v. Johnson, 29908

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtGriffith, J.
Citation165 Miss. 397,141 So. 581
PartiesMOBILE & O. R. Co. et al. v. JOHNSON
Docket Number29908
Decision Date09 May 1932

141 So. 581

165 Miss. 397

MOBILE & O. R. Co. et al.
v.
JOHNSON

No. 29908

Supreme Court of Mississippi, Division B

May 9, 1932


(Division B.)

1. RAILROADS.

Enginemen in approaching railroad crossing are not required to keep lookout beyond right of way and anticipate that automobile driver will not stop, look, and listen.

2. TRIAL. Circumstances under which defendant is not entitled to peremptory instruction stated.

Defendant is not entitled to peremptory instruction, where, laying aside and leaving out of view the testimony in behalf of defendant, evidence in plaintiff's behalf is sufficient in law to establish legal right of plaintiff in issue, and is not inconsistent with admitted physical facts or with natural laws or common knowledge, and plaintiff's testimony, taken alone, is such that reasonable men, acting reasonably, could reasonably believe that testimony and prudently act on it.

3. NEW TRIAL.

Where trial judge is of opinion that verdict is against overwhelming weight, or clearly against great preponderance, of evidence, new trial should be allowed.

4. NEW TRIAL.

Trial judge may grant no more than two new trials on ground verdict is against overwhelming weight, or clearly against preponderance of evidence (Code 1930, section 592).

5. NEW TRIAL.

Statute providing that no more than two new trials shall be granted to same party held inapplicable to new trials for errors of law (Code 1930, section 592).

HON. T. H. JOHNSTON, Judge.

APPEAL from circuit court of Prentiss county, HON. T. H. JOHNSTON, Judge.

Action by Mrs. Annie R. Johnson against the Mobile & Ohio Railroad Company and others. Judgment in favor of the plaintiff, and the defendants appeal. Reversed, and cause remanded.

Reversed and remanded.

[165 Miss. 398] Carl Fox, of Memphis, Tenn., and Ely B. Mitchell, of Corinth, for appellants.

As against positive affirmative evidence, by credible witnesses, that warning of the approach of a railroad train to a highway crossing was given by the ringing of the bell, or the blowing of the whistle, there must be something more than the testimony of the witnesses, who by reason of their surroundings would be unlikely to notice the giving of such warning, that they heard neither a bell rung, nor a whistle blown, in order to justify the submission to the jury of the question whether such warnings were given.

10 R. C. L., sec. 202, page 1011; Quenn Ann. R. R. Co. v. Reed, 5 Penn. 269, 119 Am. St. Rep. 301; Northern Central R. R. Co. v. State, 100 Md. 404, 108 Am. St. Rep. 439; Foley v. N.Y. Central R. R. Co., 197 N.Y. 430, 18 Ann. Cas. 631; Chicago, etc., R. R. Co. v. Still, 19 Ill. 499, 71 Am. Dec. 236; Holmes v. Penn. R. R. Co., 74 N.J.L. 469, 12 Ann. Cas. 1031; Stitt v. Huideroper, 7 Wall. 384, 21 L.Ed. 644; Philadelphia R. R. Co. v. Gatta, 4 Boyce, 38, 47 L.R.A. (N.S.) 932; Lockridge v. Minn. R. R. Co., 161 Ia. 74, Ann. Cas. 1916A 158; In re Edmonson, 259 Pa. St. 429, 2 A.L.R. 1150; Nashville, etc., R. R. Co. v. Prince, 212 Ala. 499, 103 So. 463; Johnson v. Aetna Life Ins. Co., 158 Wis. 56, Ann. Cas. 1916E 603; Cotton v. Willmar & Sioux Falls Railway Company, 8 L.R.A. (N.S.) 648; Elias v. Collins, Receiver, et al., 52 A.L.R. 1120; Oliver v. The Union Pacific R. R. Company, 179 N.W. 1017.

A peremptory instruction is proper only where all of the facts and evidence taken as true with every just inference therefrom fail to maintain the issues.

Whitley v. Cook, 53 Miss. 551; Farmer v. Cum. Tel. & Tel. Co., 86 Miss. 55.

The court may properly give a peremptory instruction where no other verdict could reasonably have been allowed to stand. [165 Miss. 399]

Wooten v. M. & O. R. R. Co., 89 Miss. 322; Clark v. Joyce, 48 So. 721.

Erroneous instruction is not cured by instruction in conflict therewith.

Ellis v. Ellis, 160 Miss. 346.

Where a train striking an automobile at a crossing was exceeding fifty miles per hour, but sounded all necessary alarms, and motorist had an unobstructed view up track for at least eighteen hundred feet from the stop sign, railroad was not liable.

Hancock v. I. C. R. R. Co., 158 Miss. 668; M. & O. R. R. Co. v. Johnson, 157 Miss. 266.

The testimony of witnesses that they did not hear the ringing of the bell on the locomotive as it approached a crossing, without proof that the witnesses listened for the bell, or that their attention was in any way directed to it, or that they probably must have heard the bell if it did ring, cannot prevail against the positive testimony of other credible witnesses that the bell did ring at the time in question.

M. & O. R. R. Company v. Johnson, 157 Miss. 270-271.

All other things being equal, the testimony of a witness who testifies positively that a certain fact occurred is generally speaking entitled to more weight than the evidence of another witness who swears that the fact did not occur, for it is far more probable that the latter has forgotten the occurence than that it should be distinctly impressed on the mind of the former if it never took place. A fortiori the testimony of a witness that he does not remember a particular matter has little or no weight as against the direct testimony of a witness who does remember the matter.

23 C. J., section 1787, pages 42 and 43.

J. A. Cunningham, and Floyd Cunningham, both of Booneville, for appellee.

Whether the positive or the negative testimony shall prevail is frequently determined by considerations affecting the weight of testimony in general, such as the credibility of the witnesses, the accuracy of their memory their opportunities for observation, and the reasonableness of their testimony. Interest...

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50 practice notes
  • Miss. Cent. R. Co. v. Smith, 31225
    • United States
    • Mississippi Supreme Court
    • April 30, 1934
    ...and reasonable lookout on approaching the crossing." This contention [173 Miss. 525] is without merit. Mobile & Ohio R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Mobile & Ohio R. Co. v. Bryant, 159 Miss. 528, 132 So. 539. It was held in those cases that an engineer in approaching a public......
  • J. J. Newman Lumber Co. v. Cameron, 32650
    • United States
    • Mississippi Supreme Court
    • May 31, 1937
    ...903, 172 Miss. 451; Justice v. State, 170 Miss. 96, 154 So. 265; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; M. & O. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; M. & O. R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Sims v. McIntyre, 8 S. & M. 324; Y. & M. R. Co. v. Pittman, 153 So. 382......
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...151 Mass. 156; Railroad v. Trotter, 60 Miss. 442; Railroad v. Humphrey, 83 Miss. 739; Moore v. Johnson, 103 Va. 88; M. & O. R. v. Johnson, 141 So. 581; M. & O. Railroad v. Bryan, 132 So. 539; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Mi......
  • Meridian Amusement Concession Co. v. Roberson, 33973
    • United States
    • Mississippi Supreme Court
    • January 29, 1940
    ...293; Teche Lines, Inc., v. Mason, 144 So. 383; Miss. Central R. R. Co. v. Smith, 154 So. 534, 173 Miss. 507; M. & O. R. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; M. & O. R. R. Co. v. Bryant, 132 So. 539, 159 Miss. 528; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochit......
  • Request a trial to view additional results
50 cases
  • Miss. Cent. R. Co. v. Smith, 31225
    • United States
    • Mississippi Supreme Court
    • April 30, 1934
    ...and reasonable lookout on approaching the crossing." This contention [173 Miss. 525] is without merit. Mobile & Ohio R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Mobile & Ohio R. Co. v. Bryant, 159 Miss. 528, 132 So. 539. It was held in those cases that an engineer in approaching a public......
  • J. J. Newman Lumber Co. v. Cameron, 32650
    • United States
    • Mississippi Supreme Court
    • May 31, 1937
    ...903, 172 Miss. 451; Justice v. State, 170 Miss. 96, 154 So. 265; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; M. & O. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; M. & O. R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Sims v. McIntyre, 8 S. & M. 324; Y. & M. R. Co. v. Pittman, 153 So. 382......
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...151 Mass. 156; Railroad v. Trotter, 60 Miss. 442; Railroad v. Humphrey, 83 Miss. 739; Moore v. Johnson, 103 Va. 88; M. & O. R. v. Johnson, 141 So. 581; M. & O. Railroad v. Bryan, 132 So. 539; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Mi......
  • Meridian Amusement Concession Co. v. Roberson, 33973
    • United States
    • Mississippi Supreme Court
    • January 29, 1940
    ...293; Teche Lines, Inc., v. Mason, 144 So. 383; Miss. Central R. R. Co. v. Smith, 154 So. 534, 173 Miss. 507; M. & O. R. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; M. & O. R. R. Co. v. Bryant, 132 So. 539, 159 Miss. 528; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochit......
  • Request a trial to view additional results

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