Yazoo & Mississippi Valley Railroad Company v. Bruce
| Decision Date | 20 February 1911 |
| Citation | 54 So. 241,98 Miss. 727 |
| Parties | YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. ROSA BRUCE ET AL |
| Court | Mississippi Supreme Court |
October 1910
APPEAL from the circuit court of Coahoma county, HON. SAM C. COOK Judge.
Suit by Rosa Bruce et al. against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.
The facts are sufficiently stated in the opinion of the court.
Reversed and remanded.
Mayes & Longstreet, for appellant.
The ninth instruction instructs the jury that the only defense which the railroad company in this case has presented to relieve itself from liability on account of the death of the deceased, William Owen, is the contributory negligence of said deceased. And then the court proceeds to instruct the jury on what it conceives to be the obligation of the defendant in the making out of that defense.
This instruction is untrue. Contributory negligence was not the only defense presented by the railroad company. The instruction contains an explicit misstatement of the record.
In the first place, the defendant had pleaded not guilty. In the second place, the defendant had produced before the jury the testimony of various witnesses, as we have pointed out in the abstract, the effect of which testimony was to show that the train was being operated with due care; in brief, that the engine was in good order, that the engineer was an expert engineer and a safe man; that the fireman was on the lookout as he should have been; that the engineer was on the lookout as he should have been; that the train was running at a rate of speed not exceeding ten miles an hour; that the place did not have a population under the law sufficient to constitute it even a village (in fact there was no pretense that it was incorporated); that the bell was rung continuously; that the headlight was in good order and burning; and also classification lights were displayed.
Now all of this evidence so offered by the railroad company might have been true or it might have been false; it might have been good or it might have been bad; the jury may have been justified in disregarding it, or it may not; but in any case it was in there, and the court had no right to tell the jury that the only question before it was the question of contributory negligence. This was not true. The other question of the company's negligence had been presented both by the pleadings and the evidence.
In addition to which, this charge also is a charge on the weight of the evidence. It cannot possibly mean anything else. It could only be taken to mean that the railroad company had so plainly broken down on its effort to show a careful handling of the train that its evidence could not even be considered by the jury.
Clearly, for the vice in this instruction, if for no other, the verdict in this case should be set aside and the judgment reversed.
J. W. Cutrer, for appellee.
The facts are undisputed:
The conductor did not know the location or existence of the crossing.
The flagman and brakeman did not testify.
The engineer did not know the crossing existed.
Pretermitting the established fact that the statutory signals were not given as the crossing was approached.
The fact is: The conductor did not keep any lookout. The conductor did not require his flagman and brakeman, nor any of them to keep a lookout.
The engineer did not keep an attentive and vigilant...
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