69 Miss. 452 | Miss. | 1891
delivered the opinion of the court.
This case is another illustration of the danger of unnecessarily multiplying instructions. On this appeal we are confined to the consideration of the errors appearing in the instructions for the plaintiff, but we suggest that on the next trial counsel for both parties may, with full justice to the issue involved, reduce the number of charges requested.
Several of the instructions of the plaintiff are subject to
But the thirteenth instruction for the plaintiff is erroneous, and is not cured by any other. By that the jury was told that, “ although they may believe from the evidence that the plaintiff', Jobe, was guilty of negligence in approaching the railroad at the time of the injury, still, unless they further believe from the evidence that this negligence was, in whole or in part, the cause of the injury, they will find for the plaintiff.”
There was practically but one question for decision by the jury, which was whether the plaintiff was guilty of contributory negligence in going upon the track of the defendant in front of a rapidly approaching train, which was confessedly being run at a greater rate of speed than allowed by law within an incorporated town.
The whole evidence shows that, almost instantly after the plaintiff passed upon the road, he was struck by the train. It is impossible to conceive of an absence of causal connection between the negligence of the plaintiff in going on the track (if, in fact, he did negligently go thereon) and the injury he sustained. The whole question was whether he negligently went on the track in front of the train by which he was struck. If he did, that fact found by the jury ends the case, for, in the nature of things, it contributed directly to the injury. It cannot be true, under the uncontroverted evidence, that the jury could find that the plaintiff was guilty of negligence in going on the track, and yet also find that such negligence did not contribute to the injury. This, the thirteenth instruction virtually told the jury might be done, and this was erroneous.
Judgment reversed.
