Volume 239 — Mississippi Reports

<bold>1. Railroads — Public Service Commission — evidence —</bold> <bold>Commission's findings — agency station — economically</bold> <bold>infeasible — no public necessity therefor.</bold> In proceeding on petition by railroad, which had lost money since 1956 in operation of station at incorporated village whose population was 300, and by railway express agency, for discontinuance of station agency, evidence justified finding of Public Service Commission that maintenance of agency was economically infeasible, wasteful, and that there was no public necessity for such station. Sec. 7847, Code 1942. <bold>2. Statutes — construction — title to statute not controlling as</bold> <bold>to its scope and purpose.</bold> <bold>3. Statutes — construction — statute read and construed as a</bold> <bold>whole.</bold> <bold>4. Statutes — construction — conjunction "and", when used to</bold> <bold>connect phrases or sentences in a statute, binds together and</bold> <bold>relates one to the other.</bold> <bold>5. Statutes — construction — sentence conjoined to a preceding</bold> <bold>sentence in statute by word "and" construed jointly therewith</bold> <bold>and qualifies preceding sentence.</bold> <bold>6. Statutes — Public Service Commission — jurisdiction to hear</bold> <bold>railroad's petition for discontinuance of station agency at</bold> <bold>incorporated Village of Myrtle.</bold> Under statute providing in effect that railroads shall establish and maintain a depot within corporate limits of incorporated villages through which railroad passes, and that it shall be unlawful for railroad to abolish or disuse any established depot without consent of Public Service Commission, Public Service Commission had jurisdiction to hear railroad's petition for discontinuance of station agency at incorporated village. Sec. 7847, Code 1942. <bold>7. Railroads — Public Service Commission — order of Commission</bold> <bold>discontinuing agency station at Village of Myrtle justified by</bold> <bold>evidence.</bold> Where railroad had lost money since 1956 in operation of station agency, agent, whose salary was $350 to $400 per month, could perform his duties in about 30 minutes per day, closing<page_number>Page 111</page_number> of agency would not affect passenger traffic or mail service on railroad, and railroad proposed servicing shipments through station 7.8 miles away and also maintained agency 6.3 miles away, Public Service Commission order discontinuing agency at village was justified. Sec. 7847, Code 1942. Headnotes as approved by Gillespie, J.

<bold>1. Appeal — negligence — peremptory instruction on liability in</bold> <bold>negligence action — how considered on review.</bold> In appraising trial court's action in giving plaintiff peremptory instruction on liability in negligence action, Court must look solely to testimony in behalf of party against whom directed verdict is requested and taking that testimony as true, along with all reasonable inferences which could be drawn from it favorable to that party, if it could support a verdict for him, the directed verdict should not be given. <bold>2. Motor vehicles — negligence — jury question presented as to</bold> <bold>negligence of motorist whose vehicle collided with trailers</bold> <bold>parked partly on highway.</bold> In farmer's action against motorist for personal injuries sustained while hitching trailers to tractor which was parked half off and half on paved portion of highway on dark, dusty night without any rear lights, signals or reflectors of any kind, evidence presented jury question as to negligence of motorist whose vehicle collided with trailers. <bold>3. Motor vehicles — negligence — statutes — parking on highway</bold> <bold>at night-time — statute violated.</bold> Action of farmer in parking trailers and tractor half off and half on highway at night without any rear lights, reflectors, or flares, was a violation of statute. Secs. 8215, 8229-02, 8229-03, 8229-15, Code 1942. <bold>4. Motor vehicles — negligence — operation of vehicle at</bold> <bold>nighttime — range of lights rule — exceptions — qualifications</bold> <bold>of the rule.</bold> Rule respecting motorist's operation of vehicle at nighttime so as to be able to stop within the clear distance ahead is not a hard and fast one which will preclude recovery in every case in which a motorist fails to stop and collides with an object on the highway, and the particular facts and circumstances of each case must be considered, and exceptions to the doctrine are grounded on rule that the exercise of ordinary care would not have necessarily prevented accident. <bold>5. Motor vehicles — negligence — evidence — facts did not</bold> <bold>warrant as a matter of law application of rule pertaining to</bold> <bold>range of lights or vision.</bold> In farmer's action for personal injuries sustained in collision between motorist's vehicle proceeding down road on dark,<page_number>Page 385</page_number> dusty, hazy night with farmer's tractor-trailers parked half on paved portion of road with no rear lights, signals or reflectors of any kind, facts and circumstances did not warrant as a matter of law application of the rule pertaining to the range of lights or vision, and trial court was in error in granting a peremptory instruction against motorist on the issue of liability. Headnotes as revised by Ethridge, J.

<bold>1. Easements — evidence — complainant's use of roadway</bold> <bold>permissive rather than adverse.</bold> Evidence disclosed that complainant's use of roadway over defendants' land was a permissive use rather than an adverse use. <bold>2. Easements — prescription — use permissive in its inception.</bold> A use that has its inception in the permission of the owner will continue as such until a distinct and positive assertion of a right hostile to the owner is brought home to him by words or acts. <bold>3. Easements — prescription — permissive use — use of private</bold> <bold>way by neighbor.</bold> Where the use of a private way by a neighbor is by the expressed or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right. Headnotes as approved by Kyle, J.

<bold>1. Replevin — judgment for defendant — writ of inquiry — jury</bold> <bold>must find value of articles separately.</bold> Under statutory provision that where verdict is for defendant in replevin action, and plaintiff has given bond for property, judgment shall be against plaintiff and the sureties on his bond that they return the property, if to be had, or pay value thereof and damages for wrongful suing out of the writ, jury must find value of the articles separately. Sec. 2861, Code 1942. <bold>2. Appeal — replevin — judgment for defendant — cause remanded</bold> <bold>for writ of inquiry to fix value of cattle separately.</bold> Where jury found for defendant, in action to replevy cattle, but did not fix value of the cattle, cause would be remanded on writ of inquiry so that jury might assess the values of the several animals in order that if any one of them might not be restorable, value, as fixed by jury, might be paid in lieu of restoration. Sec. 2861, Code 1942. <bold>3. Appeal — costs — apportioned equally where parties equally</bold> <bold>blamable for patent error in verdict.</bold> Where any of the parties could have moved to have jury correct its verdict in order to comply with replevin statute, but none of them did so, the parties were equally to blame for the patent error in the verdict, and costs on appeal would be apportioned equally between them. Sec. 2861, Code 1942. Headnotes as approved by Lee, J.