Davis v. Temple

Citations

• 129 Miss. 6
• 91 So. 689

Syllabus

<p>1. Raibkoads. Contributory negligence of automobile passenger held for jury.</p> <p>Where the plaintiff and another, who were riding together in an automobile and were injured at a railroad crossing by a moving train, testify that they slowed down, looked, and listened for a train, and that there was no bell ringing or whistle blowing, that they did not- see the approaching train' until it was within a few feet of them, and that their view was obstructed by a box car which they did not know was there until the happening of the accident, and also testify that the train was running at o greater rate of speed than allowed by law, the defendant is hot entitled to a directed verdict, even though the witnesses for the defense are more numerous and it appeared probable that the plaintiff and witness could have seen the train and heard the bell if they had been giving attention. Conflicts in the evidence are for the decision of the jury.</p> <p>2. Railroads. Instruction on statutory presumption of negligence held erroneous.</p> <p>It is error to charge the jury for the plaintiff in a personal injury suit that the prima-facie statute, section 1985, Code of 1996, Hemingway’s Code, section 1645, raises a presumption of negligence from the infliction of injury by a running train unless the facts surrounding the injury are proven, “and as proven must show that the defendant was guilty of no negligence in connection with the injury,” and that if “the jury is left in doubt as to any of the facts and circumstances, or are unable from the evidence to determine with reasonable certainty all of the facts and circumstances attendant upon the injury either because of the lack of evidence, or the conflict in the evidence, then, and in that event, the presumption of negligence created by the statute prevails and the plaintiff is entitled to the benefit thereof.” Where the facts are shown in evidence either by the plaintiff or the defendant, the liability must be determined from the fac