Harrison v. Southern Railway Co.

46 So. 408, 93 Miss. 40

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Whitfield, C. T.,

delivered the opinion of the court.

The court below erred in excluding the testimony of Price. It was competent to go to the jury for whatever they might think it Worth. The court also erred in excluding the testimony of the witnesses of the appellant with respect to the experiments made as to how far the baby could be seen from the direction from which the train came. This testimony was clearly competent. The purpose of the inquiry was to show whether the engineer saw, or ought to have seen, the child in order to have avoided the catastrophe, and it was directly relevant to that inquiry. The experiments were made on the same- • kind of a day as that on which the injury occurred, at the same hour of the day, and under like conditions in every respect, and we fail to see any sound reason which can support the exclusion of the testimony taken under circumstances identical, or nearly identical, with those obtaining on the day the injury was inflicted. See Greenleaf on Evidence (16th’ed.), p. 89, § 14; Id., p. 275; Burg v. C., R. I. & P. R. R. Co., 90 Iowa, 106, 57 N. W., 683, 48 Am. St. Rep., 419; Nosier v. C., B. & Q. Ry. Co., 73 Iowa, 268, 34 N. W., 850; Brooke v. C., R. I. & P. R. R. Co., 81 Iowa, 504, 47 N. W., 76; C., St. L. & P. R. Co. v. Champion (Ind.), 32 N. E., 874, 23 L. R. A., 861. The question for solution in this case is whether the engineer did see, or under the circumstances ought to have seen, the child in time to have avoided the injury, and this testimony was valuable in the solution of that question. The case was one which, on its facts, ought to have been solved by the jury.

Beversed a/nd remanded.