79 So. 62 | Miss. | 1918
delivered the opinion of the court.
This is an appeal by the Gulf & Ship Island Eailroad Company from a judgment against it for thirty thousand dollars in favor of the appellees for the death of Thomas Grafton Prine, a son of Laura Prine and brother of the other appellees. Thomas Grafton Prine.
It appears that a squad of men under a sergeant and corporal was assigned to duty at Brooklyn Bridge to guard the bridge to prevent injuries from either alien enemies or their friends ■ and sympathizers, and that three posts or guards along the trestle and bridge in question were established, a guard having a post in the section of the bridge and trestle to guard, and there given a beat or place to patrol. About thirty minutes before the injury the corporal in charge of the squad went upon the bridge and called to young Prine, who was then on duty, and Prine went to where the corporal was, and they had some conversation, and the corporal went away, leaving Prine upon the bridge or trestle near the span of the bridge, which was the. last time that Prine was seen by the corporal.
One of the other soldiers on duty testified that shortly after the corporal left Prine he saw him strike a match and light a cigarette. This was some twenty minutes before the train passed which killed Prine.
In approaching the bridge the train which killed Prine came around a curve some one thousand two hundred yards south of the bridge, and the train was equipped with a powerful electric headlight. The soldiers on duty testified that the train in approaching did not blow the whistle or ring the bell. That there was a signboard. some six hundred yards south of the bridge marked “W,” which was designed as á whistling board, and that the engineer did not blow the whistle or ring the bell in approaching. A private soldier, stationed on duty north of the bridge, states that when the engine came
It is further testified for the plaintiff that the engineer had been approached by the corporal of the guard a few days prior to the injury, and requested to give signals on approaching the bridge so that the soldiers could extricate themselves from a position of danger, and that the engineer refused to give such signals, stating it was not his duty to give signals, that it was the duty of the soldier to stay out of a place of danger, and off the track when the trains were approaching.
The engineer testified that, on approaching the bridge, as he came out of the curve south of the bridge, he
No person saw Prine at the time he was injured, and the fireman corroborated the engineer, saying he was on the lookout himself, and that he did not see Prine, and that he could see the track clearly, and that Prine was not upon the track when the engine passed. He
The conductor testified that the signals were given as testified by the engineer, and that he gave him the go ahead signal, as no stop was to be made at Brooklyn that night.
It appears in the testimony of the corporal and sergeant that Prine had a right to go upon the trestle ox-bridge in his duties, and that no order was given prohibiting him from doing so.
It is also testified by Maj. Hogaboom that Prine had no right to go upon the bridge without an order from the corporal or officer of the bridge to do so; that his post was below the bridge, and that he would be violating military law to go upon the bridge without an order; that if he saw any person upon the bridge or near it, it would be his duty to call the corporal of the guard; and that under no circumstances would he have a right to go upon the bridge without an order so to do. Maj. Hogaboom says there was no written order, and that he was not present with the guard at the time of the injury.
The proof shows that Prine was a young man in military'service, a private soldier getting thirty .dollars per month, of which he contributed twenty dollars per month to his mother and brothers and sisters.
Upon this evidence the court below granted a peremptory instruction to find for the plaintiff in the following words:
“The court charges the jury to find for the plaintiffs in this case, and it shall be your duty as jurors to award such damages as the jury may determine from the evidence to be just, taking into consideration all damages of every kind to any and all parties interested in this suit, as shown by the evidence. The exact
It is assigned for error, and insisted: First, that the state court did not have any jurisdiction, that the rights of Prine, whatever they may be, were governed by the federal law,- and that the state court did not have jurisdiction to entertain suit at all; second, that it was error to give a peremptory instruction if the state law applied.
In answer to the first objection that the state court did not have jurisdiction, and that the suit, if any action lay, must be brought in the federal court, we desire to say that in our judgment no federal question arises on this record. We have been referred to no statute bearing upon the subject, and no decision of any court sustaining this view.
We think, however, it was error .to give the peremptory instruction. The rule in giving a peremptory instruction is that, conceding all the facts to be true which the testimony tends to establish, and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made, or nothing to be submitted to the jury.
It is insisted here that the prima-facie statute (section 1985, Code of 1906; section 1645 of Hemingway’s Code) applies; that the railroad company failed to meet the burden and overcome the presumption of the statute. We think on -the particular facts of this record that the jury could have found favorably to the railroad. We also think the jury could have found for the
We think the question of liability should be submitted to the jury upon proper instructions.
Reversed and remanded.