St. Louis & San Francisco Railroad v. Ault

Citations

• 101 Miss. 341
• 58 So. 102

Syllabus

<p>1. Master and Servant. Injuries to servant. Instructions. Trial.</p> <p>In a suit by the engineer of a passenger train against a railroad for personal injury caused by running into an open switch, negligently left open by a freight train brakesman, an instruction that if the “railroad or its employees” were guilty of negligence was not objectionable in that it did not point out what employees were negligent, where the single act of negligence charged was the leaving of the switch open and the only servant of the defendant who could have been guilty of any negligence at all was either the brakesman or conductor in charge of the freight train.</p> <p>2. Same.</p> <p>Common sense and not hypercriticism should govern the court in passing upon' instructions given or refused.</p> <p>3. Invalid Release. Tender of money received for release.</p> <p>Where a release from damages for personal injury is obtained by fraud, it is void and the plaintiff on bringing suit need not tender the money received thereunder, but the jury on rendering a verdict for plaintiff should give the defendant credit for the money paid for such release and legal interest thereon.</p> <p>4. Contbibutoby Negligence. Defense to gross negligence.</p> <p>Mere contributory negligence on the part of plaintiff is no defense to reckless or wanton negligence by the defendant.</p>