71 Miss. 402 | Miss. | 1893
delivered the opinion of the court.
We shall consider only that assignment of error pressed upon our'attention by counsel for appellant in oral argument and in their brief, viz., the refusal of the court below to charge peremptorily for appellant. The rule authorizing and requiring such charge has been so repeatedly and so fully stated by us in recent eases that we find it unnecessary to attempt its announcement afresh, and we proceed at once to consider the material points in the evidence developed on the trial below.
The rate of speed of the switch-engine at the time is put by the witnesses for the appellee at fifteen or tAventy miles an hour; and by the testimony of these witnesses the switch-engine and its train ran seventy-five or eighty yards before stopping, after having run over the appellee, as Avould have been expected if the rate of speed AAas as described. From the same sources of evidence, it appears that no signal or warning was given by this rapidly-moving train, and no lookout Avas kept on the cars so being pushed in front of the switch-engine to give an alarm, if necessary, to protect those who habitually used the grounds for crossing and recrossing the tracks at the place where appellee Avas hurt. That the engineer of the switch-engine was aimlessly running bis train at that time is admitted, for he says he saw that the local freight, a long train, as he and his fireman both state, was sloAvly moving towards — perhaps was partially on — the main line, beginning to make its Avay north from "Water
On all this evidence, it cannot be affirmed that appellant so perfectly vindicated the conduct of its servants as to make it clear that it was free from negligence, and so leave no place for a reference to the jury for its finding. It seems equally clear that the contributory negligence of appellee was an open question, and properly referable, on the facts admitted and disputed, to the determination of a jury. This course was wisely adopted by the court below, and the jury has found the controversy adversely to appellants, and correctly so, as we think.
Affirmed.