68 So. 166 | Miss. | 1915
delivered the opinion of the court.
This is an action for the recovery of damages for causing the death of the son and brother of plaintiffs. It was alleged and proven that the deceased was killed at a public crossing by the running of the cars or locomotive of defendant. To meet the burden imposed by section 1985', Code 1906, the defendant undertook to show how all trains that had passed over this crossing were equipped and operated.
It is claimed by defendant that the evidence shows that a certain train was the train which killed the deceased. It is also claimed that this train was carefully operated, and was equipped with all appliances necessary to the easy control of the locomotive. It is the contention of defendant that the prima facie statute was fully met, and that defendant was entitled to an instruction directing a verdict for it. On the other hand, plaintiffs contend that they were entitled to a peremptory instruction.
It appears from the evidence that section 4045, Code 1906, was entirely ignored by the employees of the railroad company in charge of this train, in that the whistle was not blown or the bell rung continuously from the time the locomotive reached a point three hundred yards from the crossing until the locomotive had passed over the highway. This was a violation of. the plain mandate of the law, and it follows that the burden of the statute was not met.
Affirmed.
