Alabama & Vicksburg Railway Co. v. Lowe

Citations

• 73 Miss. 203

Syllabus

<p>1. Railroads. Suit by parent for death of child. Exclusion of competent evidence. Curaiime effect of offer to admit.</p> <p>The exclusion of competent evidence does not constitute reversible error, where, on the subsequent withdrawal of the objection, the trial court, in rectification of its action, consents to the introduction of the same, and the party by whom the evidence was offered, when thus afforded full and seasonable opportunity to introduce it, declines to avail of the offer, on the ground that it would be fruitless, in view of the fact that the evidence had already been pronounced incompetent in the hearing of the jury.</p> <p>3. Same. Death resulting from negligence. Evidence of negligence. Peremptory instruction for defendant. When property refused.</p> <p>In an action against a railway company for damages for negligently running over and killing' plaintiff’s child, it is proper to refuse a peremptory instruction for the defendant where there is evidence to the effect that the train by which the injury was caused was, at the time, being run on and across frequented streets, in a densely populated part of the city, at a hig-h rate of speed, and without due caution being' used in keeping a lookout in turning- a sharp curve on which the view was obstructed, and, on which account, dang'er was constantly to be apprehended: for such evidence goes to the question of negligence, and should be submitted to the jury.</p> <p>3. Same. Contributory negligence. Negligence of plaintiffs servant.</p> <p>Although the nurse having charge of two small children, one of whom is the victim of the subsequent disaster, may attempt to take them across a railway track, after she sees the smoke of the engine and becomes aware of the approach of a train, she is not necessarily guilty of contributory neglig'ence; and if there is evidence going to show that the train was then several hundred feet away, and she had ample time in which to have safely and prudently made her way acro