St. Louis Southwestern Ry. Co. v. Wilkes

On Motion for Rehearing.

[6] The motion has been carefully considered, and the conclusion reached by a majority of the court that the facts of the ease made it error to hold that no reversible error was presented by the third assignment of error, complaining of the court’s charge. It is believed that the court’s charge was error in holding appellee only to contributory negligence or assumed risk. If appellee voluntarily incorporated into the train at Athens the two bad-order cars, and thereby the braking power of the train was reduced below the 75 per centum prescribed by law, appellee would be precluded of any recovery for an injury proximately caused by such violation of the law on his own part, and the jury should have been in effect so told by the court.

The writer does not agree to the effect given the evidence by the majority, and hence thinks the charge should not be deemed misleading and prejudicial.

According to the views of the majority of the court, the motion should be granted, and accordingly the judgment is reversed and cause remanded, and it is so ordered.