New Orleans & Northeastern Railroad v. Brooks

85 Miss. 269

• Court: Mississippi Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Truly, J.,

delivered the opinion of the court.

The court refused the appellant a peremptory instruction, but the theory of the defense, in each of its varying phases, was fully and fairly submitted for the determination of the jury. The sole question here presented is whether, under any view of the case, accepting as true, and giving the most favorable consideration to, the testimony of the appellee, this judgment can be sustained. That the employes of appellant were, guilty of negligence is manifest. To run an extra freight train, at an unusual time, through a thickly settled part of a town, at a rapid rate of speed, in the night time, over 'frequented street crossings, and without giving any signal or ringing any bell, must assuredly be deemed negligence. The appellee did not insist, nor did the court instruct, that such acts on the part of the railroad employes was gross negligence, but allowed the jury to pass on the question of whether the conduct of Brooks, the injured party, as disclosed by the testimony, was such as to constitute, under the circumstances of this.case, contributory negligence. Manifestly, appellant has no ground of complaint on this score. It is contended that the facts of the case show beyond dispute that Brooks, the person injured, was guilty of suck recklessness as to preclude recovery by appellee. But the conduct of Brooks at the time of the injury was of itself a controverted‘fact, and this and all other controverted facts must be submitted to the jury. This was done by the trial judge, and their determination was adverse to the contention of appellant. The jury, upon disputed facts, guided by fair and accurate instructions, having found that the negligence of appellant was the proximate cause of the injury, and there being some testimony to sustain that finding, we must decline on this ground to reverse the judgment, even though it may be granted that the question was one of doubt.

There is yet another principle of law, well settled in this state, which required the submission of the case to the jury. It was shown beyond per adventure that the injury was'inflicted by the running of the train. This was prima facie proof of negligence, authorizing a recovery by plaintiff. To overcome this statutory presumption, it devolved upon the appellant to exculpate itself by establishing to the satisfaction of the jury such circumstances of excuse as would relieve it from liability. But this statutory presumption cannot be overthrown by conjecture. The circumstances of the accident must be clearly shown, and the facts so proven must exonerate the company from blame. If the facts be not proven and the attendant circumstances of the accident remain doubtful, the company is not relieved from liability, and the presumption controls. In this case the testimony of the fireman, by whom alone it was sought to prove the details of the accident, was contradictory and discredited. With this testimony out of the record,- the presumption of negligence applies, for the accident remains unexplained. It may well be that the jury doubted or rejected the testimony, as it was in their province to do, and decided that appellant had not established its freedom from negligence. This consideration is likewise sufficient to sustain the finding of the jury.

Affirmed.