Alabama & Vicksburg Ry. Co. v. Davis

Citations

• 69 Miss. 444

Syllabus

<p>1. Contributory Negligence. Driver of vehicle. Imputing to occupant.</p> <p>The contributory negligence of a driver in venturing upon a crossing before an approaching train, whereby his vehicle is struck, is not imputable to a temporary occupant of the vehicle, who is being driven in it by the mere invitation of its owner, aiid who has no control over the driver, and no reason to believe that he is imprudent.</p> <p>2. Same. Occupant of vehicle. Railroads. Case.</p> <p>Plaintiff, a young lady, was in a buggy with her little sister in her lap. ITer escort, a young man, who was driving, negligently attempted to go over defendant’s track, at a crossing, in front of a running train. Just before reaching the track, plaintiff, seeing the danger of the approaching train, cried out: “ Surely, you do not intend to cross! ” To this he replied, “Yes.” Thereupon she screamed and seized him. There was not time to decide her course and get out before the buggy was struck by the train, running at an unlawful speed, and she was injured. The team was gentle, but she had no control over it or the driver, and had no 'reason to believe him an imprudent person. Held, that she was not guilty of contributory negligence, and could recover.</p> <p>3. Practice. Remittitur to avoid new trial. Conclusiveness.</p> <p>Where the circuit court, deeming a verdict excessive, announces that it will set it aside and award a new trial, unless a remittitur is entered, . whereupon plaintiff remits, but excepts to the action of the court as coercive, he is concluded by his election, and cannot assign the action of the court for error.</p>