| Miss. | Oct 15, 1909
delivered the opinion of the court.
As the proof now appears in this case, it conclusively shows that the injury to plaintiff was inflicted in some way by the running of the locomotive. This being so, he was entitled to .all the benefit of section 1985 of the Code of 1906, which provides that: “In all actions against railroad companies fof damages done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be •prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to' passengers and employes of railroad companies.” In this view of this statute, under the facts as they now appear in the record, it is exceedingly doubtful whether or not a peremptory instruction should not have been given plaintiff on the question of liability; but since this case is to be tried again, we leave this question undecided, as a new trial may develop new facts.
We are very much inclined to the view that the testimony offered to rebut the prima facie case made by the testimony of plaintiff under the statute leaves it a matter of conjecture as to how this accident happened. When this is the case, this court has said, in the case of New Orleans, etc., R. Co. v. Brooks, 85 Miss. 269" court="Miss." date_filed="1904-11-15" href="https://app.midpage.ai/document/new-orleans--northeastern-railroad-v-brooks-7989262?utm_source=webapp" opinion_id="7989262">85 Miss. 269, 38 South. 40, and in Yazoo, etc., R. Co. v. Lan-
By the first instruction the court told the jury that “it devolved upon plaintiff as a passenger to exercise ordinary care not to be injured, .and if you believe from the evidence that his injury was caused from his leaning out of the car window,, or holding his arm out the car window, so far as to be struck by an object twelve inches from the coach, then he is guilty of contributory negligence, and cannot recover.” The testimony nowhere shows that plaintiff was either leaning out of the window or holding his arm out of same. On the contrary,, it negatives this. All instructions must have application to> the case made, and not be mere arbitrary announcements of the law.. Again, instructions cannot have inserted in them fictitious facts, and the jury be told that, if they believe those unproven facts, they must find in favor of the party asking the instruction. Reversed cmd remanded.