63 Miss. 33 | Miss. | 1885
delivered the opinion of the court.
On the trial of this case in the court below a peremptory instruction was given to the jury to find for the defendant. This was not authorized under the facts disclosed by the evidence for the plaintiff.
According to the testimony of the witness Allen, Jack Jones, the brakeman, who had been stationed as a lookout on the rear car of the train, which was backing on the switch and by which the death of the plaintiff's child was caused, was standing near the rear end of that ear looking in the direction of the children, who were walking along the track unconscious of their danger. It seems that all other persons near the scene of the accident saw and appreciated the danger which was impending and attempted to warn the children of its approach. All the witnesses concur in the statement that there was no obstacle to interrupt the view of the children by Jones. If he was where Allen says he was, and if he was looking in their direction, as Allen declares that he was, the jury would have been justified in finding that he did see them. Seeing them in their dangerous position, unconscious of their danger, it was clearly his duty to make some effort to avoid the injury, and however negligently they may have acted in getting on the track, the defendant was liable if its servants, knowing their position, failed to exercise due care in preventing the accident. It is true that Jones denies that he saw them; but whether he did or not was a question of fact to be decided by the jury and not by the court, since there was sufficient evidence, if believed by it, to support a verdict based upon the assumption that he did see them.
It was error to exclude the evidence offered by the plaintiff that Jones stated to Will Hayes, Moore, and others, that he saw the children before the accident occurred. It is true that Jones did not deny the fact of having so stated, but said that he did not
The judgment is reversed and cause remanded.
