Korter v. Gulf & Ship Island Railroad
40 So. 258
Miss.
1905
Check Treatment
Truly, J.,

delivered the opinion of the court.-

Whether appellant’s deceased husband was a trespasser or a licensee, it is not necessary now to consider. Whether trespasser or licensee, it was still his duty to conduct himself with ordinary care and prudence for his own protection. Whether there be any real distinction between the duty owing to a trespasser and that owing to a licensee (compare Williams’ case, 69 Miss., 639 [12 South. Rep., 957], and Arnola’s case, 78 Miss., 787 [29 South. Rep., 768; 84 Am. St. Rep., 645]), the burden of exercising ordinary carei is incumbent upon the party, even if a licensee. Nichols v. Railroad, 83 Miss., 139 (36 South. Rep., 192). The record in this case shows, after all the circumstances attendant upon the accident are fully disclosed, that the death of Korter-was caused by his own inexcusable recklessness. Tie was not at the time at a place where duty called him or where invitation had attracted him. But even had he been, it is manifest that by the exercise of any degree of care he could have avoided the slowly-moving train, which was the cause of his death. Morehead v. Railroad, 84 Miss., 123 (36 South. Rep., 151). The record shows that he was in a place where there were no obstructions to the view, and fails to show any circumstances which-could impute any degree of negligence to the operatives who were in charge of the train.

The case for the appellant rests solely upon the statutory presumption of negligence which attaches in case of injury inflicted by the running of a train; but this presumption gives way when the facts attendant upon the accident are made known. In the instant case all the facts were thoroughly investigated - and plainly appear in the record. Under the case made by the proof the presumption of negligence was met and overthrown, it being perfectly manifest that there was no negligence upon the part of *489tbe employes of tbe railroad company. Railroad v. Brooks, 85 Miss., 275 (38 South. Rep., 40).

There was no conflict upon any matter justifying tbe submission of tbe question of negligence to tbe jury. Tbe fact that tbe testimony of one of tbe witnesses as to tbe circumstances of tbe accident was attempted to be impeached by proof of contradictory statements does not by any legal rule of evidence operate either to impeach or contradict tbe testimony of tbe other witnesses. Conceding that tbe testimony of one witness was rendered absolutely valueless by successful impeachment, this casts no cloud of suspicion or doubt on tbe veracity of other witnesses. Tbe testimony of both Strange, the flagman, and Neno, tb© engineer, stands absolutely uncontradicted and unimpeached. And this testimony is conclusive that there was no negligence on tbe part of tbe train operatives, but inexcusable recklessness on tbe part of tbe deceased. This precludes any recovery of damages for bis death.

Affirmed.