Bell v. Southern Railway Co.

49 So. 120, 94 Miss. 440

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Fletcher, J.,

delivered the opinion of the court.

Plaintiff’s testimony in this case tended to show, not that he boarded the train while it was in motion, but that he got upon the first step before tbe train started. Tbe train started immediately, and when plaintiff raised bis foot to advance to tbe second step bis beel was caugbt by an express truck, wbicb was standing against tbe railroad track so near tbe passing coacb as to strike plaintiff’s foot. Plaintiff .was knocked from tbe car steps and injured.

This being tbe case as made by tbe plaintiff’s testimony, it was error for tbe court to give a peremptory instruction for tbedefendant railroad company. Tbis is not tbe case of a passenger boarding a moving train; and it is settled law that it is negligence for a railroad company to permit a truck to stand so-near tbe track as to strike passengers wbo are in tbe act of taking passage on tbe train. Wooten v. Mobile, etc., R. Co., 79 Miss. 26, 29 South. 61.

It is hardly necessary to add that conflicts in tbe testimony are for tbe jury, not for tbe court.

Reversed and remanded,