Mobile & O. R. v. Campbell , 114 Miss. 803 ( 1917 )

Stevens, J.,

delivered the opinion of the court.

Appellee as the plaintiff in the court below instituted this action against appellant to recover damages for personal injuries sustained by him in a collision at Tupelo, July, 1914. Mr. Campbell was one of the regular engineers of the Frisco Railroad Company, and as such engineer had an earning capacity of at least two thousand four hundred dollars per annum. At the crossing in Tupelo, Miss., where plaintiff was injured, the Mobile & Ohio runs approximately north and south and the Frisco Railroad approximately east and west. Plaintiff was in charge of his Frisco engine doing switching on the Frisco Track at the point where it is intersected at right angles by the main line of the Mobile \& Ohio. The evidence for the plaintiff, and indeed the overwhelming weight of testimony, shows that Mr. Campbell at. the time of the collision was in possession of the crossing, and had been switching forward and backward at the crossing for some fifteen or twenty minutes prior to the collision. While thus upon the crossing the tender of Campbell’s engine was violently struck by several loose runaway cars of the Mobile & Ohio Railroad Company moving northward over the Mobile & Ohio tracks. The impact was so violent that Campbell’s engine was hurled some distance northward along the Mobile & Ohio tracks, and a bad wreck was left as a testimonial of some one’s negligence. The plaintiff in his declaration averred that he was operating his engine on the St. Louis & San Francisco Railroad crossing in accordance with all the rules and regulations of his company, and that he was using due care and caution; that in doing his switching he had keen occupying that part of the track which crosses the Mobile & Ohio Railroad in the town of Tupelo for some fifteen or twenty minutes; that in order to switch the cars it was necessary for him to move his engine to and fro on said crossing, and that while paintiff was thus engaged, one of the freight crews of the defendant company hacked or shoved a cut of loose cars in a- northerly direction from a point some hundreds of feet south of the crossing at a great rate of speed, which exceeded the limit allowed by law for backing a train within an incorporated town, and which exceeded the limit allowed for backing a train alongside a passenger depot; that the said freieht crew moved the Mobile & Ohio engine and cars in a recHess and .grossly negligent manner, and rushed the same upon the crossing without observing any care or, caution to prevent an accident, and collided with Mr. Camtpbell’s locomotive without giving warning oir without stopping; that when plaintiff became aware of-the sudden onrush of the freight train, it was too late to mjove his engine off the crossing, and in order to save his own life he was forced to jump- from his engine, and in doing so, fell upon a brick pavement in such way as to sprain his ankle, wrench his back, and permanently injure him. The defendant under its plea of the general issue gave notice that under section 1353, Code of 1906, it is the duty of any person running a locomotive propelled by steam upon or across the tracks of another-railroad to come to a full stop just before it approached the crossing tracks, and that the plaintiff had violated this statute by himself coming upon the crossing with his engine without coming to a full stop. Secondly, it gave notice that the plaintiff received his injuries as a result of his own negligence, in that he went upon the crossing without due care and caution and without observing whether or not the track was clear; and that defendant’s employees were flagging him in an effort to prevent his coming upon the crossing, and that plaintiff' failed to obey the signals. After issue joined, the cause was tried by the court and jury.

The evidence offered on behalf of the plaintiff fully sustained his contentions that he was upon the crossing some fifteen or twenty minutes prior to the time of the collision; that the locomotive and cars of the defendant company which collided with plaintiff’s engine were being operated at a high and dangerous rate of speed, estimated by the plaintiff’s witnesses from twelve to twenty-five miles an hour, all within the corporate limits of the city of Tupelo and along the regular passenger depot. The proof shows that the Mobile & Ohio train was engaged in switching; that the locomotive was not in charge of the regular engineer, but that the fireman with two negro brakemen had been directed to shove a cut of freight cars from the yard south of the crossing up the main line of the Mobile & Ohio tracks to what is termed the “house track.” The Mobile & Ohio locomotive was shoving these twelve cars in such way that it is difficult to determine whether the engine had been in fact securely coupled to the cars or not. The regular engineer at the time of the collision was some distance north of the crossing. The train also was not in charge of its regular conductor. The conductor; Mr. Underwood, had left his crew at the south end of the yard, with directions to the fireman to operate the engine and shove these loose ears up the line. The head brakeman and only white brakeman connected with the train, was also away from his post of duty, engaged in unloading freight at the freighthouse several hundred yards north of the scene of the accident.

The testimony shows that the acting engineer was a fireman, and nothing more than a fireman, and had never been licensed to operate an engine. The Mobile & Ohio engine, with the twelve freight cars, proceeded to move from one of the switch tracks of the Mobile & Ohio on to the main line, and proceeded north towards the crossing, and in doing so according to the plaintiff’s testimony, and according to the overwhelming testimony for both plaintiff and defendant, moved at a rapid rate of speed variously estimated by the witnesses from five to twenty-five miles an hour. The witnesses for the plaintiff estimated the speed from twelve to twenty-five miles an hour. In moving at this rate of speed the train was approaching a prominent crossing, in the northwest angle of which was located the regular passenger depot at Tupelo. There is no question, then, about the fact that the train was being backed at a great and reckless rate of speed toward and along the regular depot, without being preceded by any kind of a flagman, and without stopping before going upon the crossing. The violent impact of the train with Campbell’s engine shows that the cut of cars was approaching the crossing at a rapid rate of speed. At that time there does not seem to have been a regular flagman at the crossing, but Conductor "Underwood, with flags in his hands, stood upon the crossing, and attempted to flag down or stop the fast-backing train, and thereby to avert a collision. The acting engineer in charge of the Mobile & Ohio engine reversed his engine in emergency, and in doing so,’ according to the defendant’s theory, “broke” some of the cars loose, and these loose cars were responsible for the collision. This is really the only excuse offered by the defendant for the collision.' It appears to be the theory ■of the defendant, and this is the argument of counsel, that the engineer, in attempting to stop, broke his train in two, and from this it is argued that no one could have averted the’ so-called accident. The proof, however, does not show that a coupling broke in two, but some of the defendant’s witnesses offered the theory that when the engineer reversed his engine, the draw-head of one car slipped over the other at a time when the cut of cars was nearing the crossing. In other words, the only cause of the collision is based upon a “low drawhead.” The argument of counsel is largely ■directed to the application of certain statutes which we set out as follows: Section 4047 of the Code is as follows :

“Backing- into or along a Passenger Depot. — It shall be unlawful to back a train of cars, or part of a train, or an ■engine into or along a passenger depot at a greater rate of speed than three miles an hour; and every such train, par-t. of a train, or engine backing into or along a passenger depot, and within fifty feet thereof, shall, for at least three hundred • feet before it reaches or comes ■opposite such depot, be preceded by a servant of the railroad company on foot, not exceeding forty nor under twenty feet in advance, to give warning. For every injury inflicted by a railroad company while violating this section, the party injured may recover full damages without regard to mere contributory negligence.” Section 4046 of the Cods is as follows:

“Bunning, Flying, Walking, or Kicking Switches.— It shall not be lawful for any railroad company or other person to switch a railroad car in the manner commonly known as a ‘flying,’ ‘running,’ ‘walking’ or ‘kicking’ switch, within the limits of a municipality; and, in case of injury resulting to any person or property from switching in violation of this section, the railroad company shall be liable in damages, without regard to mere contributory negligence of the party injured.”

Section 1353 reads as follows:

“ (Eailroads); Locomotives to be Stopped in Certain Cases, etc. — If any person shall run, or cause to be run, a locomotive propelled by steam upon or across the track of any other railroad company without first coming to a full stop just before it comes upon or across such track, he shall, on conviction, be fined not less than twenty-five dollars nor more than one thousand dollars, or imprisoned in the county jail not more than one year, or both; and if, by reason of his coming upon or across such track, some person shall be killed or injured, he shall, upon conviction, be imprisoned in the penitentiary not more than fifteen years. ’’

The jury returned a verdict for the plaintiff and assessed damages at ten thousand dollars. It is claimed by appellant that the law was not properly given in charge to the jury, and complaint is especially made of instruction No. 1 which reads as follows:

“The court instructs the jury for the plaintiff, Camp-' bell, that it is unlawful for a railroad train to be operated within the corporate limits of a city at a greater rate of speed than six miles an hour, and that it is unlawful for a train, or a part of a train, to back into or alongside a passenger depot in an incorporated city at a greater rate of speed than three miles an hour and that within two hundred feet of the said passenger depot a servant must precede the cut of cars not less than twenty feet, or more than forty feet; and that it is unlawful for a train, or part of a train, to go upon the crossing of another railroad track with its own, without coming to a full stop ,just before going on the crossing, and that if the jury are satisfied by a preponderance of the evidence that all or any of these laws were violated in the operation of the Mobile & Ohio train on the day of this accident, and that plaintiff received injuries on account of the said negligence of the said railroad company, then it is your duty, under the law, to return a verdict for him for full damages.”

It is contended on behalf of the appellant that this instruction authorizes a recovery for full damages without regard to contributory negligence. Counsel for appellee meet this criticism by the contention that under the express provisions of sections 4046 and 4047 plaintiff was entitled to recover “full damages without regard to mere contributory negligence;” and in any case the defense of contributory negligence is an affirmative defense, and that the issue of contributory negligence was fairly submitted to the jury under proper instructions. Much is said about the application of section 135’3 of the Code, which does not contain a provision to find for full damages without regard to mere contributory negligence. This statute provides that if any person shall run a locomotive propelled by steam upon or across the track of another railroad without first coining to a full stop, he shall he subject to prosecution and to punishment. Appellant contends that the enactment of chapter 135, Laws of 1910, providing that contributory negligence shall not be a bar to the recovery of damages for personal injuries, operated to repeal those provisions of sections 4046 and 4047, authorizing a recovery “without regard to mere contributory negligence.” In other words, it is contended that, even though sections 4046 and 4047 were violated, plaintiff could not recover “full damages.” These statutes were designed to protect the public and to enforce a high degree of care under the circumstances therein mentioned.

In our judgment it was not the purpose of the legislature in enacting chapter 135, Laws of 1910, to repeal, alter, or modify either of these Code sections. The act of 1910 does not expressly refer to these Code sections, and all three statutes can well stand and' operate together. Prior to the enactment of chapter 135, Laws of 1910, where the plaintiff was guilty of contributory negligence he could not recover; the contributory negligence was a bar to his right of recovery. The purpose of the new statute is simply to afford a right of recovery in those cases where plaintiff’s negligence had operated' as a complete bar, and not to give any one sustaining personal injuries a right to sue in all cases where the defendant’s neligence contributed in whole or in part to the injuries complained of. It is contended that instruction Ño. 1 authorized the jury to award the plaintiff “full damages” if the jury are satisfied that all or any one of the statutes referred to was violated; that under section 1353 full damages without regard to plaintiff’s negligence could not be allowed, and the embracing of this statute renders the instruction fatally defective.

In determining liability in this case, and especially in considering the correctness of this instruction, it is well to remember that the prima-facie statute applied against the appellant, and the burden of proof was upon it to exculpate itself from negligence. This, in our judgment,, it has not done. "What is the showing made by the Mobile & Ohio Bailroad Company? There is some conflicting testimony, and all disputed questions of fact have been resolved in favor of the plaintiff, Campbell, and their findings, unless produced by a clear misapplication of the law, should certainly not be disturbed. But aside from any disputed facts, the scene enacted by the defendant company at the time of the injury complained of speaks louder than the words of legal argument. According to the plaintiff’s testimony, evidently believed by the jury, and demonstrated by the force of the impact, the train was backing up the main line at a high and dangerous rate of speed, and under circumstances which justify some of the witnesses in referring to the cars as a “flying” or “kicking”* switch. The only explanation offered by the defendant was that there was a low drawhead. But does this explanation really explain? If the cut of ears were ever properly coupled, it would appear that the couplings should have been such as would hold the several cars together under an emergency of this kind. There is no contention that a good coupling had broken in two, but the admitted fact that a drawhead was too low to hold. In addition to an admittedly bad drawhead, it was fairly inferable from the testimony, and the jury was warranted in concluding, that the fireman, inexperienced as an engineer, reversed his engine with such violence that his improper handling of the engine caused the train to break in two. The very fact that the train broke in two and caused a violent collision speaks for itself and calls for a sufficient explanation. The showing of the defendant was insufficient. There was no effort at any better showing.

More than this, if we accept at par the testimony offered on behalf of the plaintiff, as the jury evidently did, there is evidence warranting the jury in believing that a “flying” or “kicking” switch was being made. Mr. Tom Hall, the general foreman of the mechanical department of the Frisco at Tnpelo, was standing on the south side of the Frisco Railroad one hundred and twenty or one hundred and twenty-five feet west of the crossing and in plain view of the collision. He testified that the hacking cars were going about twenty-five miles an hour; that they were not attached to the engine; that at the time he observed them rapidly approaching the crossing they were some three or four car lengths from the engine; and that they were making a “flying’’ or “kicking” switch.- One question and answer from his testimony is as follows:

“They were making what you know as a ‘flying’ switch, was it? A. Yes, sir.”

Mr. Walter Wood, who had been living in Tupelo twelve years and who had been doing regular switching for the Frisco Railroad six years, was an eyewitness to the collision, and in answer to a question as to how fast the cars were coming when they struck the tank of Camp-hell’s engine, responded: “I judge ten or twelve miles.”

Mr. R. M. Whitlock, a citizen of Tupelo for nine years in charge of a finishing machine at the Tupelo Cotton Mill, saw the approaching cars and stated: “They looked like they might be making twelve or fourteen miles an hour. ’ ’

Mr. Campbell testified that in doing some switching or placing some ears down the house track, his engine had been cut off from the cars he was placing, that the whole length of his tender was over the Mobile & Ohio track at the crossing, and while so situated the Mobile & Ohio cars came up the line “cut from the engine.” The-following appears from his testimony:

“Q. They (the cars) were not connected with the engine? A. No, sir. Q. doing to make what you call a ‘flying’ switch? A. ‘Flying’ switch. Q. doing at eighteen or twenty miles an hour ? A. Yes, sir. . . . Q. What did you do? A. The conductor gave me the alarm. Q. What did he say to you? A. He hollered to me to get off the engine, and the time he hollered, he called my name and told me, lie says, ‘For God’s sake, leave that engine! ’ and they were so close I dasent go out the gangway. I knew they would hit the tank, and I went back and jumped out the side window. . . . Q. "When you went out, what happened to you? A. I fell on the concrete walk on my left side. ’ ’

We quote the testimony to show that there was sufficient evidence to warrant the jury in finding that the Mobile & Ohio employees were in fact making a kicking switch, and that the cars never had in fact been properly coupled together. While there is some evidence, especially some statements made by Mr. Underwood, that Mr. Campbell was himself guilty of negligence, the showing of the defendant in this record is not very satisfactory. Mr. P. H. Mitchel, employed as a ear inspector of the Mobile & Ohio Railroad Company, was an eyewitness to the collision, being some one hundred yards north of the crossing. He testifies that he heard Mr. Underwood on the crossing “hollering for Mr. Campbell to jump.” He was then asked:

“Q. Did you mean to convey the idea that the trains were about to strike when you first saw it? A. He (Underwood) had run across the crossing, and was hollering for Mr. Campbell to jump out of the engine. . . . Q. When you first saw the crossing was it vacant, or Mr. Campbell’s engine on it? A. Mr. Campbell’s engine was standing on it. Q. When you first saw it, could you see the Mobile & Ohio freight train coming from the south? A. Yes, sir; when he was hollering. Q. What was Mr. Underwood saying? A. He was hollering for Mr. Campbell to jump. Q. What did he have in his hand, if anything? A. He' had a red flag. Q. He ran around on the north side of Mr. Campbell’s engine hollering for Mr. Campbell to jump? A. yes, sir.”

And on cross-examination:

“Q. When you first saw down there you saw the crossing was blocked by Mr. Campbell’s tank? A. Yes, sir. Q. The next thing you saw was, Mr. Underwood came around the tender? A. Came around the tender. Q. You saw that plainly yourself? A. He came around. .• . . Q. To the end of the tank? A. Hollering for him to jump.”

Thus saith the defendant’s own witness and the defendant’s own employee. The testimony out of the mouth of the defendant’s witness demonstrates that Campbell had possession of the crossing; that he was not anticipating danger; that Mr. Underwood, on account of the presence of Campbell’s engine, had to run around the end of the tender to get on the right hand or the engineer’s side of the engine to make sure of his warning. He was loudly and' excitedly calling to Campbell to jump. If Campbell had been negligently approaching the crossing with his engine, then manifestly at the time of the collision Campbell’s engine would not have been stationary on the crossing, and that, too, for such length of time as compelled Underwood to run from the south to the north side of this engine in pleading to Campbell to jump.

Keeping in mind, then, the facts of the case, there is no real cause to complain at instruction No. 1 because it authorizes the jury to return a verdict for “full damages.” The word “full” is here more nearly synonymous with the word “all,” and simply means such damages as the jury think the plaintiff is warranted in receiving.

There can be no question but that the jury was fully warranted in believing that the defendant violated both sections 4046 and 4047 of the Code, and if it violated either, plaintiff was entitled to recover “without regard to mere contributory negligence. ’ ’

It only remains to determine then whether the instruction should be condemned because it embraces the hypothesis contemplated by section 1353 of the Code. We are of opinion that it was not necessary for the plaintiff to invoke this statute at all, and that the invoking of' the statute under the facts of this particular case was immaterial, and constitutes harmless error. By this statute the Mobile & Ohio employees on this particular occasion would have been required to bring their train to a “full stop just before” coming upon the crossing; that is, if the statute has any application at all to a case of this kind.

But regardless of the statute, the Mobile <fe Ohio train would have been required to come to this same “full stop” before plunging into Mr. Campbell’s engine. The duty imposed by the statute under the facts in this case is also imposed by the general law of negligence. The plaintiff was not required to invoke section 3 353, and any instruction which imposed‘upon the defendant the duty in this case to come to a full stop was a proper instruction, announcing the'substantive law of the case regardless of what the statute says, and regardless of whether the statute has any application at all, and regardless of whether the defendant had, under the facts in this case, a right to plead contributory negligence. ' In this connection we observe that, even though the plaintiff, Campbell, had proceeded upon the Frisco crossing without exercising due care, if he had possession of the crossing before the Mobile <fe Ohio train got to it, then it would follow that he who was first in time was first in right. Although Campbell might have taken possession of the crossing wrongfully, this would not authorize the employees of the Mobile <fe Ohio train to run over Mm or knock him off. This is not a case where Mr. Campbell ran into a Mobile <fe Ohio train in violation of a flag warning, but the evidence indisputably shows that Conductor Underwood was standing upon the crossing, not for the purpose of flagging trains generally, but primarily for the purpose of catching his own train as it proceeded up the main line of the Mobile <fe Ohio tracks. • The evidence indisputably shows, further, that he attempted to flag down his own train, and would have succeeded in doing so had the cars held together. Under the circumstances, then, it was impossible for his train to have complied with section 1353 of the Code. It would be idle to say that a cut of loose cars is under a duty to stop, look, and listen before going upon a crossing. The application of the statute in no wise added to or took away the obligation imposed upon the defendant, but the duty imposed by the statute and the instruction given by the court did clearly announce what the law is, even if the statute had never been enacted. The defendant says that this instruction should be condemned because it imposed upon the engineer the duty of coming to a full stop, and the statute has no application in determining the liability of a railroad company, but does regulate the conduct of the engineer and only imposes a duty upon the person. It is manifest, however, that the duty in this case was upon the railroad company, acting by and through its servants and employees, to stop this train before it collided with the Frisco engine.

As applied to the facts of the case, instruction No. 1 properly defined the duty imposed upon the defendant, and it only remains to determine whether the words “full damages” nullified the defendant’s plea of contributory negligence. Conceding for the purpose of argument that the plaintiff was guilty of contributory negligence, even then the jury in deliberating’ upon a verdict and in arriving at the amount of that verdict would first be compelled to determine the full extent of plaintiff’s injuries in accordance with the directions of the instruction complained of. The purpose of our comparative negligence statute is to authorize a negligent plaintiff to recover, but to recover only an amount diminished in proportion to the negligence of the respective parties to the litigation. The very word “diminish” presupposes some fixed amount to be cut down or subtracted from. A jury, in ascertaining what amount they will award the plaintiff, would naturally direct their minds to the ex-teut of the injuries — the full amount of damages — and then determine the proportion of negligence which the evidence shows each party was guilty of. There would necessarily he some starting point for the jury — some basis from which the calculations are to be made. If the jury did not first ascertain the full damage and accept this as a basis for. their calculation, then they would be figuring in the dark and without a legal criterion of any kind. Their verdict thus arrived at would be about as. certain as a survey made without any starting point. The instruction complained of in no wise sought to deny to the defendant its right to have the doctrine of comparative negligence submitted to the jury on proper instructions. The defendant did obtain instruction No. 8 whereby the issue of comparative negligence was duly submitted. Instruction No. 1 did not tell the jury that they must return full damages regardless of contributory negligence. It said nothing about contributory negligence. It was the contention of the plaintiff that there was no contributory or comparative negligence. He had a right to present his contentions according to his proof. The word “full” had no particular significance. If this word had been left out, the instruction would have meant the same thing. In the case of Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 South, 459, our court expressly held:

“Under the law in this state regarding instructions, when it is desired that the jury be told of the statutory law that contributory negligence will operate to diminish damages, the party so desiring that information on the subject be given to the jury must present to the trial judge proper instructions in writing containing such information.”

The present case falls within the principles of the Nix Case just referred to. In the case note on the federal Employers Liability Act in volume 8 of Negligence Compenshtion Cases Annotated, on page 24 it is said:

‘ ‘ The burden of .proving the defense of assumption of risk or contributory negligence is upon the defendant. Seaboard Air Line R. Co. v. Moore, 228 U. S. 433, 33 Sup. Ct. 580, 57 L. Ed. 907.”

The language of the federal act in reference to comparative negligence is almost identical with the language ■of our statute.

The plaintiff in this case had the absolute right to recover regardless of contributory negligence. The defense of contributory negligence is always an affirmative defense, and the burden of proof as to it is upon the defendant. This is the rule in Mississippi and the rule ■enforced in federal courts. By the express provision of .our statute all negligence is now a question for the jury.

It is next contended that instruction No. 2 misled the jury as to the measure of damages. This instruction reads:

“The court instructs the jury for the plaintiff that the. measure of damage, if the jury believe that the plaintiff has been injured by the negligence of - the railroad company, is the amount that will compensate him for his injuries, and in computing this amount it is proper for the jury to take into consideration his actual damage, including mental and physical pain, loss of time, expense, and doctor’s bill, drugs, etc.; and, if the jury believe by a preponderance of the’ evidence that the plaintiff’s injuries received by the negligence of the defendant are of permanent nature, then they may compute his future earning capacity by his expectancy, multiplied by his earning capacity, if the jury are satisfied from the evidence that he had an expectancy and earning capacity. ’ ’

A portion of this instruction is singled, out without giving proper weight to all the language employed. The instruction does state that if the jury believe that the plaintiff has been injured by the negligence of the railroad company “that the measure of damages, is the amount that will compensate him for his injuries.” By these words the jury are given to understand that compensation in this case is the end of the law. It is true the jury are further told that they may compute his future earning capacity by his expectancy multiplied by his annual earning capacity. The jurors are supposed to be expert triers of- facts, and imbued with a wholesome amount of common sense. The verdict of ten thousand dollars is an absolute demonstration that the jury did not, in fact, allow an amount derived by computing his expectancy multiplied by his earning capacity. If they had done so, they would have multiplied two thousand four hundred dollars by sixteen and two-tenths per cent, making thirty-eight thousand eight hundred and eighty dollars, which, in connection with other damages testified to, would have approximated the sum of fifty thousand dollars. It is manifest that the jury did not respond to the literal terms of this language as employed in the instruction. We think, therefore, that, conceding error in the instruction, the error in this case is harmless.

Complaint is made that there is no qualification to the effect that the permanent injury received by the plaintiff resulted in total disability. The uncontradicted proof does show that the plaintiff was an experienced engineer, capable of earning and actually received no less than two thousand four hundred dollars per annum; that he was injured, and severely injured; that at the time of the trial he was unable to hold down the job of engineer, and, according to his testimony, would never be able to do so. The argument, therefore, that the instruction does not take into account the fact that Mr. Campbell might earn a little money in various ways is highly technical Avhen applied to the facts reflected by this record. If an expert engineer has been rendered totally incapacitated to do service as an engineer, then certainly he has been denied the privilege of pursuing his calling, and it is no abuse of the English language to refer to him as permanently injured.

One witness for the defendant testified that after the collision Mr. Campbell operated his train from Tupelo to Amory, and that on the trip to Amory there was an accident or wreck which caused the plaintiff, Campbell, to jump from his engine; that in this slight accident near Amory in which, according to the witness, the engine was derailed, the plaintiff was there injured, instead of being injured at Tupelo. -There was evidence for the plaintiff which contradicted and impeached this testimony.

There is also an intimation of counsel that this is a falie case, but the defense of the railroad company' in the trial of the case below does not appear to have been based upon this theory. If the evidence indeed showed that this was" a fake case, then it should be reversed on the facts. The issue of fact’has been settled by the verdict of the jury, and their findings should certainly not be disturbed, unless there is some reversible error in the application of the law. It is altogether plausible that the plaintiff was severely injured by falling broadside upon the brick or concrete pavement as. a result of his excited effort to jump from his engine, and it is also plausible that his injuries did not fully develop until a day or two afterwards. The fact of his injury is supported. by the testimony of his physician.

As above stated, there was no duty resting upon the plaintiff to negative by his instructions the affirmative defense of contributory negligence. Instruction No. 1 for the plaintiff and instruction No. 8 for the defendant, when read together, properly announce the law. There was.no conflict one with the other.

There is no merit in any of the other assignments of error or contention raised by counsel for appellant.

If a plaintiff is required himself to ask charges from the court submitting the defense of contributory negli.gence, it would impose upon the plaintiff a duty of confessing possible negligence on ^iis part when under his proof he is entirely innocent.

This cause has been twice argued, has received our most careful consideration, and we see no cause to disturb the jury’s findings. ■

Affirmed.

Ethridge and Szkes, JJ., dissent.