Mobile & Ohio Railroad v. McArthur

Citations

• 43 Miss. 180

Syllabus

<p>1. Demurrer to Evidence. — It is the peculiar office of a jury to find the truth of facts, and judge of the credibility of witnesses, and it would, therefore, be a misapplication of a demurrer to evidence to refer questions of fact to the court; the demurrer to evidence is an admission of all the facts which the evidence tends to prove, and which, from the evidence, the jiu'y might find for the other party.</p> <p>2. Same. — If the evidence be vague, loose, uncertain, conflicting, existing in parol— it is an improper case for demurrer to evidence, and the opposite party ought not to be compelled to join in demurrer. And the demurrer ought not to be allowed, unless the evidence be stated in the form of facts proved, so as to limit the court to the legitimate function of merely- applying the law to the fact so stated.</p> <p>3. Same. — Demurrer to evidence being purely a common law proceeding, it must be applied to our jurisprudence with all its common law analogies.</p> <p>4. Judgment on Overruling Demurrer to Evidence__Whenever, as is the case in many actions ex contractu, on default, final judgment may be rendered, a writ of enquiry will be unnecessary upon the overruling of the demurrer to evidence ; but in actions ex delicto, though the tort grew out of a breach of duty, as in this case, the only safe practice is to assess the damage by a jury.</p> <p>5. Same — Case in Judgment, — In an action ex delicto for damages, the circuit court having overruled a demurrer to the evidence, signed judgment for the total amount sued for. This is held to be error. There should have been a writ of enquiry and a jury to assess the amount of damages.</p> <p>6. Liability qe Railroad Company to Passenger on Freight Train. — A passenger on a freight train which was not regularly, but only occasionally used to carry passengers, paid his passage money; the train carried him five miles beyond his destination; put him off at another station; he had to walk back to his destination; he