78 Miss. 407 | Miss. | 1900
delivered the opinion of the court.
It is impossible to support this verdict, even on the plaintiff’sown testimony. He was plainly guilty of contributory negligence. He says the Batesville accommodation train, by which he was struck, had been on only a week, and when asked whether all trains stopped at the switch, he did not answer at all. This is utterly unsatisfactory evidence of a general custom. It is true he was only fourteen years and five months old, but he was a bright boy, thoroughly familiar with the-location and movement of all trains. Making all due allowance for his age, it is obvious that he was mature enough and had discretion enough to make him plainly chargeable with contributory negligence, on his own testimony. The mere existence of the custom, if it had been satisfactorily shown, to-stop at the switch, would not relieve him of the duty of relying as well on his own prudence and use of ordinary care as on the custom. He was still bound to the use of his senses, and could not, whilst plainly discarding their use, 'recover on the
Reversed and remanded.
