Mississippi Central Railroad v. Hanna , 98 Miss. 609 ( 1910 )

McLain, 0/

This is an appeal from the circuit court of Forest county, by appellant, from a judgment rendered against it in favor of appellee for alleged damages to one buggy, harness, and the killing of one horse. From this judgment, the defendant railroad company appeals.

Upon the trial of this cause in the circuit court, the defendant railroad company asked the following instruction (.No. three): “The court instructs the jury for the railroad company that it is the duty of any one approaching a railroad crossing to use due care and caution to avoid injury; that while it is not necessary for the driver approaching a crossing to come to a full stop and look and listen, it is necessary for him to use such care as an ordinarily prudent person would take to insure his safety; and in this case, if they believe from the evidence that Mrs. Stella Hanna, the driver of the rig in question, could have avoided the accident by looking and listening for approaching train, then they must find for the railroad company, even though the employes in charge of the train were also guilty of negligence.” The court modified this instruction by.striking out the words “looking and-listening for approaching train,” and inserted in lieu thereof the words “the exercise of reasonable care and caution.” This instruction, thus modified by the court, was declined by the defendant, and not read to the jury. It is true the instruction, as modified, announced a correct proposition of law; but, as modified it contains in substance about the same propositions of law as announced in instructions Nos. one and two given to defendant by the court. The instruction as asked by the defendant presented a correct and sound proposition of law, and was applicable to the facts of this case, and it should have been granted without modification. It presented a concrete statement of facts, based upon the evidence, which, if believed by the jury, entitled the defendant to a verdict in its favor.

On the facts in this case, we are of the opinion that the defendant was entitled to instruction No. three as originally asked, and that the learned trial judge below committed error in modifying the same.

Reversed and remanded.

Per Curiam. The above opinion is adopted as the opinion of the court, and, for the reasons therein indicated by the commissioner, the case is reserved and remanded.