McKenna v. Alabama & Vicksburg Railway Co.
Mississippi Supreme Court
From the circuit court of Warren county. Hon. Oliver W. Oatchings, Judge. Mrs. McKenna, the appellant, was plaintiff in the court below; the railway company, the appellee, was defendant there. From a judgment in defendant’s-favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The plaintiff, while crossing defendant’s track at Cherry street, in Vicksburg, was struck on the head by a descending beam of the railroad street gate.
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From the circuit court of Warren county. Hon. Oliver W. Oatchings, Judge. Mrs. McKenna, the appellant, was plaintiff in the court below; the railway company, the appellee, was defendant there. From a judgment in defendant’s-favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The plaintiff, while crossing defendant’s track at Cherry street, in Vicksburg, was struck on the head by a descending beam of the railroad street gate. The occurrence took place in broad daylight, and plaintiff’s witness testified that any person, walking as the average person…
1Opinion of the CourtCaljeioon, J.
There is nothing in the evidence of any negligence in the operation of the gate beams, as in Feeney v. Railroad Co., 116 N. Y., 375 (22 N. E. Rep., 402; 5 L. R. A., 544). The showing of plaintiff is that she was struck by the beam in its descent as she was walking out in broad daylight, and her witness testifies that any person would see it, walking as the average person would. This is not a case of injury by railroad rolling stock, where negligence is presumed, and the damage here might well consist with proper care on the part of the operators of the gate.
Affirmed.
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