Fore v. Alabama & Vicksburg Railway Co.
39 So. 493
Miss.
1905
Check Treatment
Calhoon, J.,

delivered the opinion of the court.

The evidence is conflicting, and without an elaborate recital of it, we think the case should have been left to the jury. They are the forum to determine whether the injury occurred in getting off the train, or subsequently, in attempting to board the caboose while in motion; and it is for them to decide whether or not there was contributory negligence in getting off the train, in view of plaintiff’s age and the attendant circumstances, and whether or not the disembarkation was made reasonably incumbent on plaintiff, under the facts they may believe to be established, considering the age of plaintiff and the acts or words of the conductor which may be shown. If the peremptory instruction was given by the learned judge below on the idea that he would set aside a verdict for recovery on the whole case, we think this stretches the doctrine too far, there being here’no warrant for *218the position that, as matter of law, conceding the testimony for plaintiff to be true, no case is shown.

- There is a distinction in the rules applicable to the action of courts in granting new trials and in giving peremptory instructions. Occasionally it is the duty of a trial court to set aside a verdict and grant a new trial, where the judge is of the opinion that the finding of the jury is clearly against the great preponderance of the evidence. But the result is simply a rehearing-of the cause, and the plaintiff is protected, finally, by Code 1892, § 738, against more than two new trials on the facts, and no appeal lies from allowing a new trial, a review by this court being had only after the final termination of the cause. Action by jury is a right where the litigant presents testimony which, if true, “fairly tends to prove the case.” Brame & Alexander’s Digest, 640, and the cases there digested in secs. 61-68. Peremptory charges should be given only where the evidence, taken as absolutely true, and might be so found by the jury, establishes no legal right or fails to maintain the issue. , Id. If, in the case in hand, there had been no other testimony than that for the plaintiff, it would hardly have been warranted to instruct peremptorily for defendant, even though the trial judge might have not believed it. On careful consideration of the facts and opinions reported, it will be found that the following cases are not put of harmony^with our views as to peremptory charges or- the weight of authority in this state — viz.: Holmes v. Simon, 71 Miss,, 246 (15 South. Rep., 70); Bernheim v. Dibbrell, 66 Miss., 199 (5 South. Rep., 693); Crawley v. Railroad Co., 70 Miss., 343 (13 South Rep., 74); Railroad Co. v. Doyle, 60 Miss., 977.

It is not the law that, because the presiding judge might well grant a'new trial on account of the verdict being against the overwhelming preponderance of the evidence, the court is therefore warranted in giving a peremptory instruction. , It may grant new trials because of this, not exceeding two, but not finally oust *219the party by a peremptory charge, unless the evidence, upon the concession that it is absolutey true, discloses no legal right.

McWillie &■ Thompson, for appellee, after the delivery of the foregoing opinion, filed a suggestion pf error, to which the court replied as follows:

Reversed and remanded.

Oalhoon, J.,

delivered the response of the court to the suggestion of error.

The argument in'support of the suggestion of error would be very strong indeed if presented on a motion for a new trial. It would be quite cogent, even now, in the advocacy of a- peremptory instruction, if the facts were all precisely as counsel think they are. We have no purpose to overrule Bardwell v. Railroad Co., 63 Miss., 574 (56 Am. St. Rep., 842), or to affect .it in any way. In that case the passenger, when about to board the train, wanted the conductor to agree to stop for him to get off at a crossing. This the conductor declined to do, because the rules did not allow trains to stop there; but he did agree.to slow down there, so the passenger might jump off. When the speed was, in the opinion of the conductor, sufficiently slackened to safely admit of.it, he told the passenger he could safely jump off, whereupon he voluntarily did jump and was hurt. There was no command to jump, and the court properly held that it was voluntarily done, and that the opinion of the conductor that it might be safely done was no excuse or justification. In the case at bar evidence appears that the conductor ordered appellant to jump, and when the appellant told him he could not get off while the train was running, and asked him to stop, the answer was that he would not run any slower, and he repeatedly ordered him off. Now, whether there was contributory negligence, or justification for the act of jumping off, from what the conductor said and did, is, under the rule of Thompson v. Railroad Co., 72 Miss., 715 (17 South. Rep., 229), a matter for the jury to deter*220mine, from appellant’s age and all the surroundings. If, on a fair view of the whole evidence, they think the jumping was, in fact, needless and a voluntary act, the verdict should be for appellee, of course; but we think the jury, and not the court, the proper agency to determine this.

Suggestion overruled.