McMurtry v. Louisville, New Orleans & Texas Railway Co.
Mississippi Supreme Court
From the circuit court of Warren county. J. D. Gilland, Esq., Special Judge, by consent of parties. The facts are stated in the opinion. 1. The defense of contributory negligence is an affirmative one, and cannot be availed of unless pleaded by the defendant. JR. 2R. Co. v. Horst, 93 U. S. 291; R. R. Co. v. Gladmon, 15 "Wall. 401 ■ Gas Light Co. v. Montgomery Ry. Co., 5 South. Rep. 735; Hielcman v. Ry.
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From the circuit court of Warren county. J. D. Gilland, Esq., Special Judge, by consent of parties. The facts are stated in the opinion. 1. The defense of contributory negligence is an affirmative one, and cannot be availed of unless pleaded by the defendant. JR. 2R. Co. v. Horst, 93 U. S. 291; R. R. Co. v. Gladmon, 15 "Wall. 401 ■ Gas Light Co. v. Montgomery Ry. Co., 5 South. Rep. 735; Hielcman v. Ry. Co., 66 Miss. 154; VieJcsburg v. McLain, ante, p. 4. 2. Plaintiff was not guilty of contributory negligence. Boarding a moving train is not necessarily contributory negligence, but whether it…
1Opinion of the CourtWoods, C. J.
To the declaration filed by plaintiff in the court below, the plea of the general issue was interposed. After plaintiff had introduced all his evidence and rested, the defendant corporation moved to exclude all the evidence from the consideration of the jury, because the evidence neither proved, nor tended to prove liability on the part of defendant, and asked the court to instruct the jury to find for defendant, which was thereupon done. This action of the court was based upon the idea that all the evidence taken together showed conclusively that there had been such contributory negligence…
2Cases cited2 opinions
- Central Railroad & Banking Co. v. LetcherSupreme Court of Alabama · 1881
- Amos v. Mobile & Ohio R. R.Mississippi Supreme Court · 1886
3Cited by11 opinions
- Konig v. Nevada-California-Oregon RailwayNevada Supreme Court · 1913
- Mississippi Central Railroad v. HardyMississippi Supreme Court · 1906
- Chicago, Burlington & Quincy Railway v. CookWyoming Supreme Court · 1909
- Mellon v. Great Northern Railway Co.Supreme Court of Minnesota · 1912
- Yazoo & Mississippi Valley Railroad v. HumphreyMississippi Supreme Court · 1903
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