58 So. 102 | Miss. | 1911
delivered the opinion of the court.
The plaintiff was in the employ of the appellant. He was the engineer in charge of appellant’s train, known as the New York Limited, a fast passenger train, and plaintiff’s run was from Memphis, Tennessee, to Amory, Mississippi. On March 6,1909, appellee was driving this train, and arrived at Holly Springs, on schedule time, 10:37 p. m. East of Holly Springs, and within less than a mile of the Holly Springs depot, was a side or passing track. A short time before the happening of the injury complained of a freight train of the defendant pulled in on this side track for the purpose of permitting this passenger train to pass, and the train stopped' so that the caboose of this train stood about seventy-five feet from the switch, and the track on which the freight train stood was on the left-hand side of the main line; the appellee’s position on his engine in passing being on the right-hand side of the engine, which put him to the right of the passing track. The evidence discloses that the employees in charge of the freight train knew the schedule time of the passenger train; indeed, they were required to know this time. As the freight train pulled into the side track, the conductor of the freight train, who was standing at the swdteh, instructed 'his brakeman to close the switch. The brakeman, instead of closing the switch, and instead of standing at the switch in order to give signals to the passenger train, went into the caboose, and was in the caboose at the time of the injury complained of. There was no light or signal at the switch to indicate that the switch was open. The conductor of the freight train went to the' depot at Holly Springs and there conversed' with the appellee, but said nothing to him about the freight train being on the passing track. It was necessary, in order for ap
There is hut one count in the declaration, and the negligence complained of is the leaving open, by the employees in charge of the freight train, of the switch leading to the passing track, with the knowledge that this fast passenger train was due and about to pass; and the declaration charges willful, wanton, and gross negligence. The defendant pleaded, not only the general issue, hut special pleas, wherein were set up the following defenses: First, that plaintiff, at the time of the injury was driving his train at a greater rate of speed than six miles an hour through an incorporated city or town; second, that he ran into the open switch without observing the rules of the railroad company relative to passing switches; third, that before the institution of the suit plaintiff received and accepted the sum of fifty dollars in payment of the injuries sustained. The contentions of appellant forcefully and ably presented, are the refusal of its peremptory instruction; the refusal of its instructions, marked 1, 2, 3, and 4; and the granting of plaintiff’s instruction to the effect that “if the defendant railroad or its employees were guilty of gross negligence or reckless omission of duty, or of wanton disregard of the safety of plaintiff, and if it was the proximate cause of said Ault’s injury and paralysis,” etc.
An all-sufficient answer to each and every proposition argued by appellant relative to the refusal of its peremptory instruction is that each and every one of the questions submitted were controverted questions of fact —questions which the jury alone had the right to pass upon, and which were submitted to the jury under proper
It is urgently insisted that the instruction for plaintiff, to-wit, was erroneous:, “The court charges the jury, for the plaintiff, Ault, that if they believe from a preponderance of the evidence in this case that the railroad or its employees were guilty of gross negligence and reckless omission of duty, and a wanton disregard of the safety of plaintiff, which was the cause of said Ault’s injury, paralysis,” etc. The criticism is that the instruction charges that “the defendant railroad or its employees,” thus making the charge too general — that the instruction should have specified what employees,
Common sense, and not hypercriticism, should govern the court in passing upon instructions given or refused.
It is strenuously insisted that the plaintiff should not recover in this case, because he failed to return, or offer to return, to the defendant the fifty dollars received by him in liquidation of the injuries received. It is the well-settled rule in this state, as announced in Jones v. Railroad Co., 72 Miss. 22, 16 South. 379, and reaffirmed in several subsequent cases, that: “If the release was
Among the crowning glories of the common law is the principle that fraud vitiates every contract into which it enters, and that it does not and cannot look with any degree of allowance upon a contract secured through fraud or imposition, and that a contract so procured is of no benefit whatever to the parties securing it." It is,
It is. not at all necessary for us to decide whether the ’mere violation by plaintiff of section 4043 of the Code of 1906, which prohibits the railroad company from running its cars through an incorporated city or town at a greater rate of speed than six miles an hour, is a defense to this suit for the .following reasons:
‘ First, the plaintiff bottoms his right of recovery upon the ground that the defendant was guilty of reckless, wanton, and willful conduct; and the only instruction given for the plaintiff was that the mere contributory negligence of the plaintiff would not shield the defendant from liability by reason of the negligence of the defendant, where its negligence is marked by gross or willful or reckless misconduct. In Railroad v. Block, 86 Miss. 426, 38 South. 372, this court properly held upon a state of facts identical with the facts in this case, that: “Leaving the switch open at the time and under the circumstances shown, with a freight triain and engine on the side track and a northbound passenger train nearly due and rapidly approaching, was an act of gross negligence, a reckless omission of duty, a wanton and criminal disregard of the safety, not only of the engineer and the fireman of the approaching train, but also of the passengers as well. In such a case mere contributory negligence on the part of the plaintiff is no defense. ’ ’ The evidence in the instant case unquestionably shows a reckless omission of duty, a wanton and crim
Second, at the instance of the defendant the court, in defendant’s first instruction, told the jury that .“if they believe from the testimony that just before discovering the open switch plaintiff was running his engine at a rate of speed of over six miles an hour within the "corporate limits of the city.of Holly Springs, and was violating the rules of the defendant company in failing to have his train under control, and in failing to stop before entering the switch, then these acts of the plaintiff were the proximate cause of the injury, and the plaintiff could not recover.” By the third instruction for the defendant the jury were charged that “if they believe from the testimony that under the rules of the company plaintiff should have had his train under control, and should have stopped it before entering the switch, because there was no light on the switchstand; and if they further believe from the testimony that plaintiff was running the engine at a rate of speed of over six miles an hour within the corporate limits of the city of Holly Springs just before he discovered the open switch, its rate of speed was unlawful; and if the jury believe from the evidence that these acts of the plaintiff, in violation of the rules of the defendant company and in violation of law, constitute gross, willful, or wanton negligence on the part of the plaintiff, and were the proximate cause of the injury, then the jury must return a verdict for the defendant.” These .instructions were certainly as liberal for the defendant as the law justifies, and as given to the jury under the facts shown in evidence the appellant has no cause of complaint. Affirmed.