Simms v. Forbes
Mississippi Supreme Court
From the circuit court of Adams county. Host. Moyse H. WieeiNSON, Judge. Miss Forbes, the appellee, was plaintiff, and Simms, the appellant, was defendant in the court below. From a judgment in plaintiff’s favor for $1,741 defendant appealed to the supreme court. The action was for damages for injuries sustained by plaintiff in falling into an open elevator shaft in defendant’s store.
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From the circuit court of Adams county. Host. Moyse H. WieeiNSON, Judge. Miss Forbes, the appellee, was plaintiff, and Simms, the appellant, was defendant in the court below. From a judgment in plaintiff’s favor for $1,741 defendant appealed to the supreme court. The action was for damages for injuries sustained by plaintiff in falling into an open elevator shaft in defendant’s store. Defendant pleaded the general issue, and gave notice that evidence would be introduced to show that plaintiff’s damage was caused by her contributory negligence. The court refused to instruct the jury that the…
1Opinion of the Court
Cox,, J.,
delivered the opinion of the court.
The charges requested for defendant below (appellant here), which proceed upon the assumption that the burden of proof *417was on plaintiff to show freedom from contributory negligence, were correctly refused. This is not tbe law. Contributory negligence is an affirmative defense. The burden of proof is upon the defendant, except in those cases where the declaration alleges facts which prima facie show contributory negligence, but coupled with matter in avoidance, and except where plaintiff’s evidence discloses contributory negligence. Wigmore on…
2Cases cited2 opinions
- Vicksburg & Meridian Railroad v. McGowanMississippi Supreme Court · 1885
- Hickman v. Kansas City, Memphis & Birmingham RailroadMississippi Supreme Court · 1888
3Cited by4 opinions
- Mississippi Central Railroad v. HardyMississippi Supreme Court · 1906
- Dabney v. StackhouseMississippi Supreme Court · 1873
- Tuccio v. SmithMississippi Supreme Court · 1928
- Crosby v. Columbus G. Ry. Co.Mississippi Supreme Court · 1938