Smith v. Fonda
Mississippi Supreme Court
Appeal from the Circuit Court of Wayne County. Hon. S. H. Terral, Judge. Mrs. Lydia Fonda and her minor children brought this action of trespass against Smith & Hambrick to recover damages for injuries inflicted on their premises by defendants floating logs down a certain creek known as “Red Creek,” which flows through their premises.
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Appeal from the Circuit Court of Wayne County. Hon. S. H. Terral, Judge. Mrs. Lydia Fonda and her minor children brought this action of trespass against Smith & Hambrick to recover damages for injuries inflicted on their premises by defendants floating logs down a certain creek known as “Red Creek,” which flows through their premises. The defendants pleaded, among other things, that “Red Creek” was a navigable stream and a public highway, and that they had a right to float their logs down the stream in the way in which it was done. On the trial the evidence as to the navigability of the…
1Opinion of the CourtCooper, C. J.
By the first instruction for the plaintiff the jury was told that the testimony was insufficient to establish that Bed Creek is a navigable stream. Counsel for appellee concede that an instruction of this character which withdraws from the jury a question of fact can be supported only in those cases in which a verdict based upon the evidence withdrawn would not be permitted to stand. This we think is the correct test, and under proper circumstances the practice of giving peremptory instructions is commendable, the effect being to terminate in one trial an issue which otherwise might be…
2Cited by6 opinions
- United States v. CressSupreme Court of the United States · 1917
- Ryals v. PigottMississippi Supreme Court · 1990
- East Hoquiam Boom & Logging Co. v. NeesonWashington Supreme Court · 1898
- Dycus v. SillersMississippi Supreme Court · 1990
- Downes v. Crosby Chemicals, Inc.Mississippi Supreme Court · 1970
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