O'Kelly v. Yazoo & Mississippi Valley Railroad

Whitfield, O. J., delivered the opinion of the court. The court erred in giving the peremptory instruction for the •appellee. The plaintiff was entitled, under the facts of the case, to'the application of Code 1906, § 1985-. The stock law had nothing to do with the case. Roberds v. Mobile, etc., R. Co., 74 Miss. 334, 21 South. 10. The engineer was contradicted as to the character of night; other testimony being that it was a starlight night on which one could see some fifty to one hundred yards. The testimony of •the plaintiff shows that the mule had run down the-track some five hundred seventy-five yards- on the roadbed of defendant before it was struck, and there was testimony that from the tracks of the mule and blood and hair of the mule on the ties and rails, it was inferable that the mule had been struck and killed by the train. The true doctrine to be applied to those ■cases in which the testimony of the engineer is to the effect .that the appliances were all right and that he did all that he could, etc., the testimony for the plaintiff showing physical facts from which the jury might have believed that the testimony of the engineer was not correct, is established in the case of Scott v. Yazoo, etc., R. Co., 72 Miss. 37, 16 South. 205. The case of Louisville, etc., R. Co. v. Tate, 70 Miss. 348, 12 South. 333, was invoked in that case for the railroad company but was distinguished by us, and we said in that case.* “To approve the peremptory instruction in this case would be practically to hold that in cases of this character, in which the" employes of railroad companies are often the only eyewitnesses, such witnesses cannot be •contradicted by circumstantial evidence. • It is the province of the jury, as the triors of fact, to ascertain the truth of a case clouded by such conflict in testimony.” The wholesome rule in such cases, and the only safe rule, is not for the court to look to mere possible speculative theories, which, by strained' construction,, might, harmonize the testimony of the employes with 639 tbe physical facts furnishing a legitimate deduction that such testimony is not correct, but to leave it to the jury to say from all the testimony, direct and circumstantial, whether the physical facts in the case show in accordance with the probabilities of the situation, and what would usually and ordinarily happen in such case, that the testimony of the employes is most likely incorrect. Reversed and remanded.