Southern Railway Co. v. Isom , 92 Miss. 82 ( 1907 )

Calhoon, J.,

delivered the opinion of the court

We cannot reverse the judgment in this case because the court permitted the plaintiff’s attorney to read the Alabama statute. This case arose in Alabama, and is determinable by the law of Alabama, and, while the court might very properly have forbidden the reading of that statute, and expressed the law entirely in instructions, we cannot say that permitting it to be read could have had the slightest influence on the verdict. The instructions did cover the law.

On the whole case we do not think that the objection to the instructions granted for the plaintiff should be sustained. If there is any vice in them, and we do not say there is, the learned counsel for the railway company got everything that could have been gotten for their side, and neutralized it. We are clearly of the opinion on a review of this record that there should not be a reversal because of the remarks by counsel.

The verdict was not excessive, and the court was clearly right in refusing a peremptory charge to the jury to' find for the railway company. It was not contributory negligence for the brakeman to sit on the brake. We think to do so was not negligence per se, and there was evidence that it was a very common thing to do, and the jury determined that question. The particular brake in point was absolutely new on the railroad, and the plaintiff, a minor, had never been notified of any difference of construction. To sit on a brake of the standard kind in almost universal use cannot be negligence. It would certainly be as safe to sit there as to sit on the side of the car, wihch was simply a dirt car and without standards. As a matter of fact, even if that brake on the Georgia, Southern & Florida car was in proper order, the accident would not have occurred, because, immediately that it was released, it would have fallen flat of itself by an automatic arrangement. In the case at bar it remained upright after release.

Affirmed.