71 Miss. 734 | Miss. | 1894
delivered the opinion of the court.
The peremptory instruction to the jury to find for the railroad company was not erroneous. From the evidence offered by the appellant, it clearly appears that he was perfectly familiar with the surroundings of the crossing where he received his injuries. He knew of the obstruction that hindered the seeing and hearing an approaching train. He knew the train was about due, and, after halting and looking and listening for an instant at a point thirty to forty feet from the track, he drove directly on and into the place of known peril, without ever again stopping or looking in the direction from which he knew the train, then about due, would come. He utterly failed to use any care or caution after halting once at a spot thirty or forty feet from the track. With the view east obstructed by houses, shrubbery, embankments and boxcars, it was his imperative duty to vigilantly observe from every available point the approaching train. At a point thirty-six feet from the'track, he had reached a position where he could see a man a thousand feet away near the track, and in the direction from which the train came. His brother actually saw the ti’ain approaching in ample time to save himself, and to try to save the appellant. The attentive exercise of sight and hearing would have warned the victim of his own folly of the approaching train, and would have averted the calamity which befell him, if he had heeded the warning of his senses.
The railroad company was negligent, palpably, grossly negligent; but, negligent as was the company, no hurt would have come to appellant if he himself had not also been pal
Affirm.ed.
