Southern Railway Co. v. Murray

44 So. 785, 91 Miss. 546

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

It was not error to charge the jury that the railroad company was negligent if it did not ring the bell or blow the whistle before crossing the highway. Code, 1906, § 4045. The instruction does not say that, because of that negligence, verdict must be for recovery if there was contributory negligence, and astute counsel for the company took good care of this in their instructions.

It was not improper to give the charge, under Code 1906, § 1985 (Code 1892, § 1808), that the damage done was prima facie evidence of want of care. Vicksburg Ry. Co. v. Phillips, 64 Miss., 693; 2 South., 537. This may always be invoked where the injury is done by the running of the locomotives or cars, but, of course, must yield to established facts. Here there was sharp conflict in the testimony, and here also counsel took abundant care of the railroad company in their instructions. The cases of Hamlin v. Railroad Co., 72 Miss., 39; 16 South., 877; Nichols v. Railroad Co., 83 Miss., 126; 36 South., 192, and Korter v. Railroad Co., 87 ; 40 South., 258, cited by counsel for appellant, in no degree affect this conclusion. We approve those cases.

We decline to disturb the verdict on the facts.

Affirmed.