Abernathy v. Mobile, Jackson & Kansas City Railroad

53 So. 539, 97 Miss. 851

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

Whitfield, C.

Whether- regard be had to the question whether the caboose in question was a reasonably safe car, or to the question whether the plaintiff was guilty of such contributory negligence as precluded recovery, we think in either case the court should have submitted the matter to the jury. There is very great force in the argument, so ably pressed, that because plaintiff had in his left hand a small stick and a paper sack, containing something, he was therefore guilty of contributory negligence in attempting to board this caboose whilst the train was running about three or four miles an hour. But, looking to the whole testimony, showing the age of plaintiff, twenty-eight years, showing him to be a strong and active young man, and showing the condition of the ladder and the worn condition of the rungs of the ladder, and showing the speed of the train to- be three miles an hour, we cannot bring ourselves to say that this is one of those rare cases of negligence which the court should take from the jury.

It is a close case, an exceedingly close case, on the evidence; and because it is so exceedingly close and doubtful, because reasonable men might differ as to the question of contributory negligence under all the circumstances; for that very reason the jury should have been left to solve the question.

Per Curiam.

Por the reasons indicated in the foregoing, opinion, the judgment is reversed, and the cause remanded.