Vicksburg, Shreveport & Pacific Railway Co. v. Barmore , 87 Miss. 273 ( 1905 )

Truly, J\,

delivered the opinion of the court.

We adhere in every particular to the opinion of the court delivered in this case on the former appeal—Barmore v. Vicksburg, etc., Ry. Co., 85 Miss., 426 (38 South. Rep., 210). It is sound both in principle and policy. So adhering, nothing remained for the trial court to determine upon practically the same testimony, except the fact of tbe injury and tbe amount of damage inflicted upon the appellee. Tbe trial judge correctly interpreted tbe opinion of tbe court, and tbe instructions granted were in perfect harmony therewith. Tbe jury, being governed by tbe overwhelming preponderance of tbe evidence, found that appellee was injured by tbe gross negligence of an employe of appellant, who, knowing appellee’s perilous situation, wantonly ran tbe tricycle against him and caused tbe injury complained of. This being true, contributory negligence would constitute no defense. So expressly decided on former appeal — see last clause of opinion. But, aside from this, tbe record contains no evidence on which to predicate tbe defense of contributory negligence.

We find no error of law, and the judgment is affirmed.