Vicksburg Railway & Light Co. v. Cameron , 88 Miss. 412 ( 1906 )

Calhoon, J.,

delivered the opinion of the court.

The declaration is for the recovery of damages for personal injuries in the operation of an electric street car. In the outset it avers that the defendant “owned and operated” the railway system. In support of it the plaintiff introduced her own testimony and that of five other witnesses, and there was elaborate examination and cross-examination. At the close of all the evideuce for the plaintiff there appears this: “The defendant moves the court to exclude the evidence offered by the plaintiff and for a peremptory instruction, and the defendant excepted.” Thereupon the defendant introduced four witnesses, and there was examination and cross-examination. On both sides the evidence was, as to the operation of a particular car, negligence or non-negligence of the conductor in causing the hurt. The jury found for plaintiff. Defendant made a motion for a new trial (overruled by the court) based on alleged errors (1) in admitting evidence for plaintiff; (2) excluding evidence for defendant;' (3) granting instructions for plaintiff; (4) refusing instructions for defendant; (5) modifying instructions for defendant; (6) excessiveness of verdict; (7) verdict against law and evidence and the weight of evidence; (8) for other causes to be shown at the hearing.

Not until the motion for a new trial was there the slightest intimation that there was objection because plaintiff had failed to show that defendant “owned and operated” the car. . On the contrary, in urging the motion to exclude the evidence in behalf of plaintiff and for a peremptory instruction to the jury to find for defendant, the whole contention was on the sufficiency of the evidence to show negligence. Further than this the bill of exceptions shows that during the trial, and requests for instructions on both sides, and arguments on those, and during the argument to the jury on the evidence, “it was assumed as a fact that the defendant company was the owner of and operated the street ear on which plaintiff was riding and from which she was alighting at the time she was hurt.” If the objection of nonproof of ownership had been made while the jury was undischarged, it would have been supplied in a moment. The court was entitled, when the motion to exclude was made, to know the grounds of it, and cannot be entrapped in this way. The principle of this case was decided by this court in Railroad Company v. Schraag, 84 Miss., 125 (s.c., 36 South. Rep., 193).

Affirmed.