Alabama & Vicksburg Railway Co. v. Dear , 87 Miss. 339 ( 1905 )

Truly, J.,

delivered the opinion of the court.

Upon the facts the case is a close one. A verdict for either side could not, on the ground of proof alone, be disturbed. There was direct conflict in the evidence, and the jury solved the issue in favor of tbe appellee. This is decisive of all controverted questions of fact.

Tbe objection urged to tbe two instructions granted tbe appellee are not tenable. Instruction number one correctly states the abstract proposition of law on which tbe claim of appellee was predicated. It was not necessary that such an instruction should expressly negative tbe defense interposed by tbe railway company.

Tbe second instruction, which is assailed by tbe appellant, is also correct. Tbe contention of counsel that this instruction, being an application of tbe law to tbe concrete case, should Have negatived tbe .existence of contributory negligence on the part of tbe plaintiff, is perfectly sound. But it avails nothing, because as presented in tbe record tbe instruction does contain the identical provision tbe alleged absence of which is complained of. Tbe argument, therefore, appears to be based upon a misapprehension of tbe language employed in tbe instruction as finally submitted to tbe jury.

There being sufficient testimony to sustain the verdict/ and no error of law having been committed, the judgment is affirmed.