Yazoo & Mississippi Valley Railroad v. Block

delivered tbe opinion of tbe court.

There was no error in granting tbe instruction for plaintiff below, who is appellee here. Tbe doctrine of contributory negligence bas no application to a case like tbis. Tbe undisputed facts of tbe case show tbat tbe collision, wbicb plaintiff jumped *434from bis engine to avoid, thereby sustaining the injuries for which suit was brought, was occasioned by the engine carrying the north-bound passenger train, on which engine plaintiff was fireman, running into an open switch (No. 1) in the south end of the Cleveland yards and striking an engine attached to a freight train standing on track No. 1. The freight engine had but a short time before been backpd in on track No. 1 and attached to the freight train. The freight brakeman, whose duty it Was to close the switch, left it open, notwithstanding the north-bound passenger train was then nearly due. The open switch was the direct and proximate cause of the collision, and, in contemplation of law, of the injuries which plaintiff sustained in jumping from his engine in an attempt to avoid the impending danger. Leaving the switch open at the time and under the circumstances shown, with a freight train and engine on the side track and a north-bound passenger train nearly due and rapidly approaching, was an act of gross negligence, a reckless omission of duty, a wanton and criminal disregard of the safety not only of the engineer* and fireman of the approaching train, but also of all the passengers as well. In such a case mere contributory negligence on the part- of the plaintiff is no defense. I. C. R. Co. v. Brown, 77 Miss., 338 (29 South. Rep., 949).

The court rightfully instructed the jury to find for plaintiff. The amount of recovery was left to the judgment of the jury, and the sum awarded was not excessive. The verdict and judgment will not be disturbed.

Affirmed.