* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 858, n. 3; Negligence, 29Cyc, p. 561, n. 37; Railroads, 33Cyc, p. 968, n. 8; Trial, 38Cyc, p. 1518, n. 69. As to effect of failure of railroad company to comply with statutory requirements as to giving of signals at crossings, see annotation in L.R.A. 1915E, 535; 22 R.C.L. 999. Appellee sued the appellant for injuring a truck which was struck by a train of appellant just south of the city limits of Meridian, on the Meridian and Quitman highway. Appellee's driver approached Meridian with a truck load of furniture, about five or five-thirty in the afternoon of a bright June day, proceeding north. The train of appellant was proceeding east, approaching this highway crossing, and struck the truck in the rear and knocked it some distance, inflicting considerable damage.
The testimony for the plaintiff was that, on account of the sun's rays being so blinding, it was impossible for the driver to see the train's approach, although he attempted to look; that the whistle was not sounded for the crossing, and the bell was not rung, and the driver and a witness accompanying the driver did not see the train until it was right upon them.
The testimony showed that the train was in an open space, right in the line of vision from the railroad crossing for some four hundred fifty yards. The engineer and fireman testified that, when the driver of the truck was approaching, he slowed down and they thought he was *Page 461 going to turn along the highway running parallel with the railroad, and when they saw he was going to cross, they applied the emergency brake, reversing the engine, and did all they could to stop, but were unable to do so. They further testified that the whistle was sounded at about one thousand feet from the crossing, and that the fireman was ringing the bell continuously from that time until the truck was hit.
One McCarty, who owns a store near the crossing, testified that the whistle was blown at the board, but that he did not remember hearing the bell ring.
The proof showed that prior to the injury the truck was worth two thousand five hundred dollars, and was operating all right, and made but little noise, and that after the injury it was only worth seven hundred fifty dollars, leaving a value destroyed by the collision of one thousand seven hundred fifty dollars; also that it took six hundred thirty dollars to repair and place in a usable condition, and that it is badly injured and parts of it are out of alignment. The jury returned a verdict for eight hundred fifty dollars.
The case was here before on a former appeal, and the court, in effect, held that the driver was guilty of contributory negligence in not stopping under conditions described by the driver, and the court below peremptorily instructed the jury that the driver of the truck was guilty of negligence.
The chief contention of appellant is that appellant should have had a peremptory instruction. After a painstaking consideration of the evidence, as contained in the record, we think appellant's contention in this regard is not well taken.
While proof for the defendant appears, at least, in the number of witnesses, to preponderate, still, that is a question for the jury, and we think the jury had the evidence to find the appellant guilty of negligence in approaching the crossing as testified to by plaintiff's witnesses. *Page 462
We think there is no merit in the contention that the two instructions assigned as error were improperly given plaintiff because the evidence did not support the hypothesis contained therein.
The judgment will, accordingly, be affirmed.
Affirmed.