Yazoo M.V.R. Co. v. Lum

2 So. 2d 561 | Miss. | 1941

There is no substantial basis for a differentiation between this case and that of New Orleans N.E.R. Co. v. Keller,162 Miss. 392, 138 So. 358. It is true that in that case it was the fireman who saw the deceased as he turned to go towards the track at the private crossing, while here it was the engineer himself; but the duty of a lookout is as much on the fireman, when not busy with his fires, as upon the engineer, Mobile O.R. Co. v. Johnson, 157 Miss. 266, 275, 126 So. 827 — hence the cases cannot be differentiated on that account.

The Keller case controls, and under it appellant was entitled to the peremptory instruction requested.

Reversed, and judgment here for appellant.