Illinois Central Railroad v. Sumrall

Citations

• 96 Miss. 860
• 51 So. 545

Syllabus

<p>1. Railroads. Injury at crossing. Duty of party crossing trades. LooTcing and listening.</p> <p>A person crossing a railroad track may assume that the company will not run a train at a speed exceeding the rate allowed hy law, hut this will not relieve him of the duty of looking and listening for an approaching train.</p> <p>2. Same. Same. Contributory negligence.</p> <p>Where a man -walked between two parallel railroad tracks, within a few feet of each other, for four hundred and forty yards and then attempted to cross one of them without ascertaining that a train was approaching and was killed hy it, there being nothing to prevent its having been seen and heard by him, he was guilty of such contributory negligence as will bar a recovery for his death, although the railroad company was negligent in running the train at a speed exceeding the statutory limit.</p> <p>3. Supreme Court Practice. Theory of case in trial court. Affirmance on another. ,</p> <p>Where an action was brought and tried upon a distinct theory, plaintiff cannot claim an affirmance of a judgment, erroneous on the theory on which the case was tried, by advancing in the supreme court a new theory of the evidence, not presented in the trial court.</p>