45 So. 614 | Miss. | 1907
delivered the opinion of the court.
The only observation which we care to make, in this case is that the cáse of Railroad Co. v. Hunter, 70 Miss., 471, 12 South., 482, was practically overruled in the Bussey case, 79 Miss., 609, 31 South., 212; but, in order that there may be no
The phrase “legal or personal representatives,” in section 193 of the constitution, embraced not only the executor or administrator, but the heirs or next of kin, as the case might be. It was perfectly idle to have put the disjunctive “or” in the sentence, if the purpose was to limit suit to the personal representative, the executor, or the administrator. Both are made plaintiffs in this action; that is to say, the widow and the children, and also the administrator. We do not think any prejudice- has occurred, looking back over the completed record, by virtue of having both as plaintiffs. The very able and ingenious brief of the learned counsel for appellant does not, we think, point out any reversible error.
The second instruction for the plaintiffs, which is complained ■of, was not intended to cover the law of the case, except as to the point charged about. The criticism takes too narrow a view of the charge. The thing involved was simply to point out to the jury what the law would be, under section 193 of the constitution, under which this suit was brought, if the evidence showed the engineer was a superior agent exercising authority and control over the brakeman. To show that this is the correct view of the instruction, the court gave an instruction for the defendant, No. 2-, the conclusion of which is in these words: “Unless they believe from the evidence that the engineer had the right to direct or control the services of the deceased”' — which is the same principle asked for by the plaintiff. In other words, both the plaintiffs and the defendant below secured from the court an instruction announcing the same principle of law on this point.
Affirmed.