Alabama & V. Ry. Co. v. Kelly

Citations

• 126 Miss. 276
• 88 So. 707

Syllabus

<p>1. Railkoads. Evidence of negligence as to boy on track held sufficient for jury.</p> <p>Where in an action for damages against a railroad company for the killing of a twelve-year-old boy walking on the end of the cross-ties the testimony shows that the engineer of the train was on the lookout and had an unobstructed view of a distance of several hundred yards to the point where the hoy was walking on the track, and the testimony of the engineer is that, if he had seen the boy at the point where the plaintiff’s witnesses testify the boy was walking, he would have known and appreciated the fact that the boy was in danger of being struck by the train and would have stopped the train, the jury could believe from this testimony that the engineer saw the boy on the end. of the cross-ties, understood and appreciated his danger, and that the boy was unaware of his peril; and this testimony was sufficient to warrant the jury in-finding that the engineer was guilty of gross negligence in failing to stop the train before striking the boy.</p> <p>2. Tbiae. Introduction of testimony by defendant held waiver of peremptory instruction.</p> <p>Where a defendant in the circuit court, at the conclusion of the introduction of the testimony for the plaintiff, makes a motion to exclude this testimony and for a peremptory instruction, which is overruled by the court, and the defendant then proceeds to introduce its testimony, the introduction of the testimony by the defendant is a waiver of its right to have this court pass upon the propriety of the exclusion of plaintiff’s testimony at the time the motion was presented.</p> <p>3. Death. Thirty thousand dollars held excessive for death of deaf and dumb boy.</p> <p>The verdict of a jury, for thirty thousand dollars consisting of actual and punitory damages for the wrongful death of a twelve-year-old deaf and dumb boy is grossly'excessive, and this court will not permit a recovery of over twenty thousand dollars in the case.</p>