75 Miss. 360 | Miss. | 1897
delivered the opinion of the court.
The third instruction for the plaintiff was inapplicable to the developed facts of the case, and was erroneous. Under the
The succeeding instruction, also numbered 3 in the transcript, was likewise erroneous. It is true that matters within the common knowledge of mankind do not require proof; but what matters of. that character were found in the case as made ? What matters of common knowledge were there in this case which called for this instruction ? Surely it was not intended thereby to authorize the jury to themselves discredit the evidence of Lilly, the engineer, by saying, .one to another, that it is a matter of common knowledge that there is an up grade where the injury was done; that it is a matter of common knowledge that a horse can be seen more than one hundred and fifty feet away by one on a train running fifty miles an hour, and on a dark night, and that it is, also, matter of common knowledge that, under such conditions, the animals could have outrun the train for a short time, and would have escaped if all proper efforts had been made to stop the train, and that a train running as this particular one unquestionably was might have been slowed down enough to permit the escape of the horses. None of these matters are to be assumed as of common knowledge, and without evidence. If there was any matter of
Reversed and remanded