Mississippi Central Railroad v. Hardy

Citations

• 88 Miss. 732
• 11 So. 505

Syllabus

<p>1. Master and Servant. Pleadings. Defects. Aided by verdict.</p> <p>Where the declaration, in an action by a servant against the master for injuries suffered in the service, predicated plaintiff’s right to recover of two alternate causes, only one of which, if true, imposed liability on the master, and on the trial a recovery was sought only upon the cause which imposed liability, and the testimony showed that the injury was attributable to that cause, and,the instructions in legal effect forbade the jury to find for plaintiff on the other cause, a verdict for plaintiff will not be vacated because of the defect in the declaration, although defendant’s demurrer thereto was overruled.</p> <p>2. Railroads. Defective'track. Duty to repair. Injury to train creio.</p> <p>A railroad company cannot delegate the duty of keeping its tracks in a safe condition, and it is liable for injuries resulting to its servants operating trains from a failure to do so.</p> <p>3. Trials. Instructions. Error.</p> <p>Error cannot be predicated of the instructions’ given in a cause, if, when considered together, they correctly propound the law of the case.</p> <p>4. Same. Special emphasis to particular testimony.</p> <p>An instruction should be refused if it have special reference to the testimony of a certain witness.</p> <p>5. Same. Repetitions.</p> <p>It is not error to refuse a requested instruction simply repeating propositions contained in charges already given.</p> <p>6. Contributory Negligence. Burden of proof.</p> <p>Contributory negligence is an affirmative defense, and must be pleaded; and where pleaded the burden of proof thereof rests on the defendant.</p> <p>7. Appeal. Supreme cotirt practice. Modified instruction. Questions not raised on trial.</p> <p>An appellant cannot assign error in the supreme court on the modification of .an erroneous instruction; if not content with the instruction as modified, he should not have read it to the jury.</p> <p>8. Damages. Evidence. Loss