New Orleans & N.E.R. Co. v. Scarlet
| Decision Date | 04 June 1917 |
| Docket Number | 19342 |
| Citation | 115 Miss. 285,76 So. 265 |
| Parties | NEW ORLEANS & N. E. R. CO. v. SCARLET |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Clark county, HON. R. W HEIDELBERG, Judge.
Suit by Joe Scarlet against the New Orleans & Northeastern Railroad Company. From a judgment for plaintiff, defendant appeals.
Appellee was a fireman upon the second engine of a double header freight train upon the appellant's railroad. The train stopped at a small station, and in starting again the engine and tender upon which appellee was riding pulled apart, due to the breakage of the king pin, which fastened the drawbar to the tender. At the time of the accident, appellee was standing with one foot on the deck of the engine, and one foot on the tender, in the act of throwing coal into the fire box. The engine and tender pulled apart, and he was dropped between the two and injured. He brought suit under the federal Employers' Liability Act and recovered a judgment of two thousand, five hundred dollars, from which the railroad company appealed. On the trial the appellee plaintiff below, requested and received the following instruction:
"That the prima facie statute of Mississippi is a rule of evidence and is admissible and binding even though the plaintiff's right of action is circumscribed and controlled by the act of Congress know as the Employers' Liability Act, and that proof of injury from the running of defendant's engine and cars is prima facie evidence of negligence on the part of the defendant, and in order to meet same the defendant must show facts and circumstances surrounding the occurrence, and thus show to the jury that there was no negligence on its part and that this presumption is not met by conjecture and surmise.
Appellant contends that the prima facie evidence statute of Mississippi (section 1985, Code of 1906, chapter 215, Laws 1912) is not applicable in a case brought under the federal Employers' Liability Act. Appellant also assigned as error the action of the court in excluding the testimony of Dr. Reynolds, the physician who examined the appellee after his injury, which was objected to by the appellee as coming within the privileged communications, and therefore protected by section 3695, Code 1906.
Affirmed.
R. H. & J. H. Thompson, A. S. Bozeman and Ben F. Cameron, Jr., for appellant.
Thos. G. Fewell and Chas B. Cameron, for appellee.
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Fisher v. State
... ... Oulette v. Davis, 69 Miss. 762; New Orleans, ... etc., R. R. Co. v. Scarlet, 115 Miss. 285; Tucker v ... State, 103. Miss. 117; LeBarron ... ...
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...to be held liable has actually selected and empowered the officer. See, also, Tucker v. State, 60 So. 65, 103 Miss. 117; N. O. & N.E. R. R. v. Scarlett, 76 So. 265; v. State, 95 So. 638. Jno. L. Buckley, also for appellee. It is elementary law that agency cannot be proven by the acts or dec......
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...patient the right of privileged communications. In Mississippi Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 842, cited in the Scarlet case, supra, the court said "The proper practice is for the party whose evidence is rejected to state and show by his bill of exceptions what the ten......
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... ... Brian ... Mooreman ... v. State, 95 So. 638; N. O. & N.E. R. Co. v ... Scarlet, 115 Miss. 285; Lamar v. State, 63 ... Miss. 265; Osborne v. State, 146 Miss. 718 ... ...