Louisville & Nashville Railroad v. McDonald, 79 Miss. 641

Louisville & Nashville Railroad v. McDonald

79 Miss. 641 | Miss. | 1901

Terral, J.,

delivered the opinion of the court upon the merits.

The schooner J. J. Clark, with her cargo, was wholly lost in consequence of the defendant’s negligence, as was alleged, in a storm, on September 7, 1900. She was on her voyage from New Orleans to the Mississippi coast towns, and in passing through the Rigolets into Lake Borgne she encountered a severe storm, which prevented her from proceeding on her voyage. From the morning to the afternoon of September 7th she lay one and one-half miles east of the drawbridge of the Louisville & Nashville Railroad Company at the Rigolets, and, fearing the worst, between 4 and 5 o’clock p.m. she lifted anchor, set her jib sail, and made immediately for the drawbridge, which was in the direct path of the wind from her anchorage. She purposed to take shelter in Pearl River. Her captain and two or three other persons on board testified that the guard or tender at the drawbridge was continuously signaled to open the draw from the time of raising her anchor until she came within one hundred yards of the bridge, where, in consequence of the omis*645sion of defendant’s servants to open tbe draw, sbe was compelled to cast anchor; from which anchorage she was afterwards unable to pass through the draw, and was subsequently stranded, and, with her cargo, was lost. An equal or greater number of witnesses on the part of defendant testified that they heard no such signals. The signal given by the schooner was the blowing of a conch shell, which had been often used at this bridge, and which could be heard from one and one-half to five miles, according to the state of the atmosphere. The only contention pressed hy the railroad company is that it should have had a peremptory instruction directing a verdict in its behalf. The damages ($1,300) found by the jury are admitted to be so reasonable that no complaint is made on that score. The defendant, admitting the signal to open the draw to have been given, insists that the court here should take knowledge that the sound of the conch shell would be unheard or undistinguished in the fearful storm then raging. That, however, was a question plainly submitted to the jury, and one falling within their province to determine. The eourt, at the instance of the defendant, clearly placed before the jury for its decision (and whose province it was to determine such questions) whether the signal to open the draw was duly given by the schooner, and whether, by reason of the tempest or other cause, the same was unheard. The verdict has settled the issue as to negligence against appellant, and we find no ground in the record to disturb it.

Affirmed.