Southern Railway Co. v. McLellan

Citations

• 80 Miss. 700

Syllabus

<p>1. Raieboads. TracIt. Employe. Personal injuries.</p> <p>In an action against a railway company by a flagman for personal injuries sustained, while in the discharge of his duties, by stumbling over a piece of slag as he walked in the nighttime by the side of a moving train, in consequence of which he was thrown under the train and injured, it is error to exclude evidence that slag is commonly used by responsible railway companies in ballasting their tracks, the same being admissible to rebut any inference that the defendant was negligent in the mere use of that material as ballast, although the case involves the question of whether or not the pieces used were so large as to show negligence. '</p> <p>2. Same. Absence of accidents at same place. Evidence.</p> <p>In an action by an employe against a railway company for personal injuries alleged to have 'resulted from obstructions negligently placed near the track, it is error to exclude evidence offered by defendant that no previous accident had ever occurred at the same place.</p> <p>3. Same. Cause of injury. Allegation of pla/imMff. Evidence.</p> <p>In an action against a railway company for personal injuries alleged to have resulted from obstructions negligently placed near the track, it is error to admit evidence that the train was short of hands and the plaintiff, a flagman thereon, was performing extra duties, there being no claim that such shortness of hands contributed to the injury.</p> <p>4. Same. Argument of defendant’s >attorney. Accident at same place. Absence of evidence.</p> <p>In an action by an employe against a railway company for injuries alleged to have* resulted from obstructions negligently placed near the track, it is permissible for the defendant’s attorney to comment in argument on the absence of evidence of any previous accident at the same place.</p> <p>5. Same. Plaintiff's statement. Exculpation. Evidence.</p> <p>In an action by an employe against a railway company for injuries alleged to