Whitfield, O. J.,
delivered the opinion of the court.
We are thoroughly satisfied that the first instruction given for the plaintiff is manifestly erroneous. That instruction is as follows: “The court instructs the jury, for plaintiff, that tire undisputed evidence that the death of the daughter of plaintiff was caused by the running of the car of defendant is prima facie evidence of negligence on the part of defendant, authorizing a recovery by the plaintiff unless overcome by testimony exculpating defendant from negligence, to the satisfaction of the jury; that such prima facie proof of negligence or presumption of negligence cannot be overthrown by conjecture, but the circumstances of the accident must be clearly shown, and the facts so proven must exonerate the defendant from blame. And if such facts be not proven to your satisfaction, and the attendant circumstances *47■of tbe accident remain doubtful in your-minds, tbe defendant is not relieved from liability, and tbe presumption of negligence ■controls, and you should thereupon find for tbe plaintiff, and in such sum as the testimony warrants, not in excess of the amount ■sued for.” Code 1906, § 1985, has no application to a street railway. Tbe brief of learned counsel for appellant on this proposition amounts to demonstration of tbe inapplicability of this section of this statute at this time in this state. Tbe authorities contained in that brief are so directly in point, and the reasoning so clear and satisfactory, that we direct tbe reporter to set out that part of said brief in full, and content ourselves by referring to' it in support of tbe inapplicability of ■Code 1906, § 1985, to street railways, as the law1 now stands. Whether this section ought not to be changed so as to embrace street railways, if it can constitutionally be done, is a. matter ■for tbe legislature.
But a careful and repeated examination of tbe testimony in this record satisfies us thoroughly that tbe giving of this instruction, whilst error, is not reversible error. Learned counsel for appellant insist that tbe case is a close one on its facts. Wc ■ cannot concur in this view. We think tbe evidence clearly and convincingly shows liability on tbe part of tbe appellant company without regard to this instruction, and that no ■ other verdict than one for tbe plaintiff could be rendered on .any rational basis. It is true that two witnesses for the plaintiff testify that tbe little girl ran upon tbe track from the west side; but four witnesses for tbe plaintiff, and the motorman himself for tbe defendant, testified that she ran upon tbe track from tbe east side. And without regard to tbe testimony of any of these seven witnesses, the physical facts show, by tbe position of tbe girl where found, beyond any controversy, that she must have run upon tbe track from tbe east side. This is beyond any reasonable controversy. Learned •counsel for appellant misconceive when they say there is no • evidence to show that tbe rail on tbe west side was higher thau *48the surface of the ground. Two witnesses expressly so. testified.. In other words, the evidence makes it perfectly clear that the rail on the east side, at the point where the girl was killed, was-from one to three inches higher than the surface of the street,, and on the west side about one inch higher. Of course, it would be immaterial whether she-entered from the east or west side-on the track, if the proximate cause of death was the elevated condition of the track on either side, over which she stumbled,, if the fact be that she did stumble. But the testimony in this; case makes it perfectly plain that she entered upon the track from the east sida That is the overwhelming testimony of' the witnesses testifying to what they observed, and it is made absolutely indisputable by the physical facts as to where the girl was found, and the position of her body when found. She must have entered from the east side, and whether she stumbled over the rail and fell and was thus killed, or whether she was-struck by the car, not having stumbled, in either case the appellant was plainly liable for her death.
This car was coming downgrade, at a rate of from seven Lo> ten miles an hour, right in front of a public school, on whose-grounds nearby, between the rails and the school, some two-hundred children were playing at noon recess. This motormam knew the railway track was constantly crossed by pedestrians,, knew these children were constantly playing out there at all recess hours, knew the children were playing close to- the track, and according to his own testimony never applied any brake to stop this car until within fifteen feet of the- little girl, who was then running parallel with the track and near to- it, so near as to advise him necessarily of her perilous position. There is-some testimony that one of the brakes1 was worn to a feather-edge, and could not be- of any assistance in his effort to- stop-the car. There is testimony that he ought to have seen these children two hundred feet away. There is evidence that he tried to stop the car, b-ut not until he was entirely too close to the child, and that he could not stop- it for some reason. The *49motorman. himself testifies that he stopped once for some little boys. He also testifies that this little girl was only fifteen feet from the car and thirteen feet from the track when he first saw her, that he was looking’ down the track on both sides, right ahead of him, and that she (the little girl) was coming toward the track, angling; that he was running about seven miles an hour, and that after he turned the current off entirely the car ran forty-five or fifty feet before he put on the brakes; and that it took the forty-five or fifty feet to stop the car, when this little girl was within a distance of seventeen feet from the track, and he had waited until that time to apply the brakes, when from the whole testimony it is overwhelmingly manifest' that he did see, or ought to have seen, this little girl, at a distance of from one hundred to two hundred feet, straight down the track ahead of him, as she was running along the side of the track.
It is not to be tolerated, under circumstances such as these, that a street railway company shall be permitted' in this reckless and wanton manner to run down and kill a young child. If it be true that she stumbled, there would have been no accident had the rails been flush, as the rails of all street railways ought to be, with the surface of the ground. If she did not stumble the rate of speed at which this car was going, downgrade, by a public school, whose grounds near the track were thronged with children, who, to the knowledge of the motorman, were in the habit of crossing the track frequently, coupled with the fact that this motorman was bound to have seen this child from one hundred to two hundred feet away, whilst she was running alongside the track, within a distance estimated from two to ten feet, and running angling towards the track, and never applied the brakes until within fifteen feet of her, and had one brake wholly, worthless constituted negligence of the most wilful, wanton, and reckless character.
This child was but six years of age, and contributory negligence is not in the case.
*50We bay© carefully examined all other assignments of error, and content ourselves, not to protract this opinion uselessly, with observing that on the record in this case they are without merit, and that the judgment is affirmed.
Mates, J.,
delivered the following dissenting opinion.
In this case the testimony would support a verdict for either party, and the court has not yet held that in such a case erroneous instructions, calculated to mislead the jury, would not cause a reversal. Indeed, in the case of Brister v. Railroad Company, 84 Miss. 33, 36 South. 142, the court expressly held that it would cause a reversal. If, on the facts of the case, it is manifest that no other verdict could or should be rendered than the one complained of, this court has held, in a line of decisions too numerous to be cited, that the cause would not be reversed for any mere error in the instructions, when it is manifest that the verdict is as it should be, and that tire errors in the instructions were not potent in procuring the verdict. But the sustaining of the verdict in those cases was based by the court entirely upon facts contained in the record, making it impossible for any other verdict to be reached, and upon facts so conclusive in their nature that, if a different verdict had been reached, the court would not have allowed it to stand. This, I think, has been the consistent and correct holding of this court. The case under discussion was' not a case where a peremptory instruction should have been given for the plaintiff. Indeed, after a protracted and most careful examination of this record, the facts and circumstances are far from making a case of clear liability on the part of the defendant company, but leave its liability in such doubt as could only be settled by the verdict of the jury. In this state of the proof the instruction complained of was given. I shall not quote the instruction, since it is set out in full in the main opinion. That opin'ion concedes that this instruction is “manifestly erroneous/’ but still holds that the giving of the instruction is not reversible error.
*51Without this vital error in giving this instruction, a verdict in favor of tbe plaintiff was possible; but on tbe giving of this instruction, a verdict against tbe plaintiff was impossible. Can it ever be said, under sucb circumstances, that sucb an error in law is not reversible ? In tbe first place, tbe instruction gives a false probative effect to certain proven facts in tbe case, raising tbe comparatively insignificant fact of mere injury by tbe running of the car to a degree of proof sufficient to warrant the jury in finding a verdict for plaintiff. In other words, the instruction creates a false quantum of proof on which to rest liability and then tells tbe jury, if they have any doubt as to how tbe injury occurred, they must find a verdict for plaintiff, resting their verdict on tbe mere fact of injury by tbe running of tbe car. It was tbe duty of tbe plaintiff to prove negligence in order to entitle him to recover, and, if be failed to do this be failed to make out his case. If, when all tbe testimony was in, tbe jury were in doubt as to bow tbe accident occurred, it was tbeir duty to find for defendant. This instruction subverts tbe whole law applicable to tbe case, and its effect is just as though the court bad given a peremptory instruction for plaintiff. Tbe rule is general that negligence is not to be presumed from tbe mere fact of injury, but must be established by the evidence; and yet tbe court tells tbe jury by this instruction that, when tbe plaintiff has shown that tbe death was caused by the running of the car, this fact alone was prima facie evidence of liability, and warranted a recovery against tbe defendant company, unless tbe testimony of tbe company ■overcame this presumption. By this portion of the instruction a presumption of liability is created where none exists as a matter of law, and tbe instruction further requires proof on the part of tbe company to overcome this false presumption. But tbe ‘instruction does not stop at this, but goes further and •directs tbe jury that this false presumption of liability cannot be overthrown by conjecture, but can only be overcome by clear proof of such facts and circumstances as would show exoneration from blame on the part of the defendant company. Tbe *52instruction does not stop' here; but, growing more stringent as it proceeds, ’further tells the jury that if, after the production by the defendant company of all its facts and circumstances introduced to overcome this presumption raised by this instruction, the circumstances of the accident remain doubtful, it is the jury’s duty to find for the plaintiff. It was impossible, under this instruction, for the jury to return any verdict savp one for the plaintiff, though the testimony in the cáse fully warranted a verdict for either party. If this instruction was not the potent cause of the verdict in favor of plaintiff, it is certain that it barred the jury from rendering a verdict in favor of defendant. It may be that the jury would have rendered the same verdict without this instruction; but it is possible that, if this instruction had not been given, the verdict would have been in favor of defendant, and in either case, on the facts, the verdict would not have been disturbed.
I have not set out the facts, but request that the reporter make a full statement of same: