40 So. 426 | Miss. | 1905
Lead Opinion
delivered the opinion of the court.
There is nothing in the evidence of any negligence in the operation of the gate beams, as in Feeney v. Railroad Co., 116 N. Y., 375 (22 N. E. Rep., 402; 5 L. R. A., 544). The showing of plaintiff is that she was struck by the beam in its descent as she was walking out in broad daylight, and her witness testifies that any person would see it, walking as the average person would. This is not a case of injury by railroad rolling stock, where negligence is presumed, and the damage here might well consist with proper care on the part of the operators of the gate.
Affirmed.
Rehearing
Rehearing.
After the delivery of the foregoing opinion, counsel for the appellant moved the court for a rehearing, because they were unadvised of its submission until the above opinion had been delivered. Counsel for appellee consented to the rehearing, and the case was remanded to the docket.
The case was then heard a second time, with the result following :
delivered the opinion of the court on the rehearing.
That the accident and injury in this case is attributable solely to the appellant’s inexcusable inattention is inescapable, from her own frank statement.
Affirmed'.
