57 So. 556 | Miss. | 1911
delivered the opinion of the court.
■ Joe Cole having been struck and killed, as it is alleged, by one of appellant’s trains, this suit was instituted by his widow and daughter to recover damages therefor. Neither side being satisfied with the verdict and judgment for one thousand dollars, rendered against appellant in the court below, each filed a motion for a new trial, both of which were overruled, and the case comes to us on direct appeal by appellant and on .cross-appeal by appellees.
Appellant complains of the action of the court below in refusing to grant it a peremptory instruction, on the theory that, although the evidence does not show how the accident in fact occurred, it does show that appel
Negligence, as defined by Judge Cooley, is “the failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance 'which the circumstances justly demand, whereby such other person suffers injury.” 29 Cyc. p. 415. Under section 1985 of the Code, when proof is made of in
In suits to recover damages for an injury alleged to have been inflicted by reason of the negligence of a defendant, except in cases where a presumption of negligence arises from the proof of certain facts, the plaintiff must show the circumstances attending the infliction of the injury, so that it may be known what degree of care, precaution, and vigilance, if any, the defendant owed to the plaintiff, and whether or not this degree of care, precaution,- and vigilance was observed by the defendant. In other words, that it may appear whether or not the injury was inflicted by reason of the defendant’s negligence. Under section 1985 of the Code the
Appellant contends that, if the rule which we have herein reanounced and approved is sound, then Railroad Co. v. Hunnicutt, 53 So. 617, was improperly decided. In this appellant is in error. The Hunnicutt case followed and approved the Brooks case, supra, and the only new feature therein contained is the announcement that it is not necessary to prove how the injury occurred by eyewitnesses, but that this proof may be made by circumstantial evidence.
Appellant further contends that, if section 1985 of the Code is to be construed as we have herein construed it, then it is in conflict with the fourteenth amendment to the federal constitution, in that it deprives a railroad company of the equal protection of the laws and of its property without due process of law. This contention has been disposed of by the opinion of the Supreme
Appellant also complains of several instructions granted by the court at the request of the appellees, which, in effect, charged the jury to find for the plaintiff, unless it was clearly shown by a preponderance of the evidence, and not by mere surmise and conjecture, not only how the injury occurred, but that it was unavoidable by the exercise of reasonable care and prudence on the part of the defendant. What we have heretofore said disposes of this complaint of appellant; and shows that the court below committed no error in granting the instructions.
Appellees complain because the court below refused them a peremptory instruction, and claim that for that reason they are entitled to a reversal of the judgment of the court below. Since the verdict of the jury was in favor of appellees, it is immaterial whether or not the •court erred in refusing to grant this instruction, for the jury have simply done what appellees requested the •court to peremptorily charge them to do.
Appellees also complain that in several instructions granted appellant the jury were charged that if Cole’s own negligence contributed to his injury they should find'for appellant, which instructions they say may have .accounted for the small verdict rendered. Conceding this action of the court to be error, it cannot be complained of by appellees; for this same principle was embodied in several instructions to the jury granted at their request.
The judgment of the court below is therefore affirmed. Affirmed.