Louisville, New Orleans & Texas Railroad Co. v. Thompson

• Decision Date: 04 April 1887
• Court: Mississippi Supreme Court
• Parties: LOUISVILLE, NEW ORLEANS AND TEXAS RAILROAD COMPANY v. P. C. THOMPSON

1 So. 840

64 Miss. 584

LOUISVILLE, NEW ORLEANS AND TEXAS RAILROAD COMPANY v. P. C. THOMPSON

Supreme Court of Mississippi

April 4, 1887

APPEAL from the Circuit Court of Franklin County, HON. J. B CHRISMAN, Judge.

The south-bound passenger and the north-bound freight trains of the Louisville, New Orleans and Texas Railroad Company were accustomed to pass each other at a station named Knoxville. On January 28, 1886, the freight train arrived first, as usual, and immediately took the side track, which was on the east side of the main track, as was the depot also. An opening was made at the depot by uncoupling the freight train and separating the two parts, as had been the usual custom. It was the custom of the depot agent, expressmen, passengers and the public generally to use this opening in going to the passenger train. Usually the freight train would remain at the station uncoupled until the passenger train had gone. On the day above stated the opening had been reduced from the usual size (from seven to ten feet) to about two or three feet in width by another opening having been made at a crossing of a new roadway over the track. On the day in question several persons crossed over to the passenger train among them the depot agent. P. C. Thompson, whose store was on the east side of the track, desiring to see the agent about shipping some freight, came up to the opening, looked about, and seeing that the freight train was not in motion and not seeing any signal for it to move, proceeded to cross over to the platform where the passenger train was standing. Just when he was between the cars the boxes came together with great force, a brakeman cried out "Look out!" and Thompson was caught between the bumpers. His pelvic bone was crushed, his thigh was broken in two places, his leg was broken, and he was confined to his bed for ten weeks suffering much of the time with intense pain. His leg, on recovery, was found to be two inches shorter, and he was otherwise seriously and permanently injured. The train came together while the passenger train was still at the station and without any previous signal except the usual hand signal of the conductor to the engineer to back the train to recouple, which was not seen by Thompson.

Thompson brought this action against the railroad company for damages and the jury found in his favor and awarded him fifteen thousand dollars. On the trial the conductor testified that he warned the public not to attempt to cross through the opening just before the train started to move back, but this was contradicted by several witnesses.

The defendant appealed to this court and made many assignments of error, one of which relates to the action of the court below:

"In refusing when requested by appellant to correct statements of law made to the jury by counsel for the appellee, and in refusing to confine counsel in his discussion of the law of the case to that announced in the instructions of the court."

The bill of exceptions on this point is as follows: "In his first address to the jury, Hiram Cassedy, counsel for plaintiff, stated that the railroad company was bound and was under an obligation to the general public, when the passenger train was at the depot, to open the freight train so that any one might pass through, whether from a whim or on business. Counsel for the defense here interrupted counsel and asked the court to correct counsel and require him to refrain from stating to the jury other propositions of law than those announced in the instructions of the court. The court said it would not say whether counsel's statement of the law was correct or not, and would not correct him or interfere with his statement of the law, but if he misstated facts would correct him."

Judgment affirmed.

W. A. Percy, for the appellant.

1. Unless some duty was owing and not discharged defendant cannot be guilty of negligence. It certainly was not incumbent on defendant to delay starting on its journey until after the passenger train started, the latter being delayed, even though usually, in the management of its train, defendant's passenger train left this point first. No rule of law--statute or otherwise--requires this. It was not exacted by any regulation of the company; it was not contained in any announcement, printed or verbal, to the public. It was not incumbent on defendant to couple up its train in any other or different manner from the usual customary method of coupling trains, or from the usual and customary method of coupling this train at this particular point. It was not its duty to blow the whistle or ring a bell for the purpose of making this coupling. (51 Miss. 157.) It was under no obligation to plaintiff to watch for his coming, or to have some one stationed at the opening through which he came on that side of its track next the depot to warn him against danger.

The crossing was not a public one; it was made for the sole and only purpose of affording convenient passage to and from the passenger train for passengers and persons having business with the train.

Plaintiff's position as to his rights and the obligations of defendant to him could not be stronger than that of a licensee. The defendant was under no obligation of active duty to prevent injury to a licensee. 66 N.Y. 243.

2. The plaintiff in this case knew the risk he was running. But the distance to go was only two steps, and he relied upon the fact that he had not heard the whistle or bell. In thus acting he was guilty of contributory negligence as a matter of law. 61 Tex. 503; 76 Me. 357; 77 Me. 85; 125 Mass. 75; 41 N.Y. 525; 81 Ill. 26; 72 Ill. 222; 19 Am. & Eng. Cases 342; Ib. 173; Ib. 183; Ib. 42; 12 Am. & Eng. Cas. 77; Beach on Con. Neg., § 67, 68, 71.

In 73 Ill. 394 it is held that where a passenger attempted to pass through cars of freight train standing at depot on a siding and blocking the way, in order to get to passenger train, and freight suddenly started and hurt him, his negligence would defeat a recovery. So it is negligence per se to crawl under cars stopped temporarily on the track or to climb over stationary cars. Beach on Con. Neg., § 72.

Either of these operations, condemned as negligence per se, in the position that the train occupied when Thompson attempted to pass through, would have been manifestly safer and altogether more prudent than that attempted by him. Rorer on Railroads 1018, 1055, 1058, 1061, 1027, 1031; 52 N.Y. 215, 223.

The doctrine deducible from all the cases is, that the law conclusively affects every one going upon a railroad track with a knowledge that he is in or is about to occupy a place of danger; that if a train is on the track which is about to or may move at any moment his position calls for the highest degree of care, and that a failure to use such care by halting, listening, looking, and using all other means of observation in his power is per se negligence, and will defeat a recovery, no matter what may have been the negligence of the railroad company. The doctrine of most of the courts, and among them our own, is that in such case the plaintiff should be nonsuited. A brief examination of the evidence will demonstrate that Thompson utterly failed in every requirement of law.

3. The court below erred in allowing counsel for plaintiff to state the case to the jury otherwise than given in the instructions.

This seriously affected the position of the parties before the jury. Eminent counsel, whose judgment of law presumably had great weight with his neighbors and friends, stated to the jury, with a degree of earnestness and candor which carried conviction, a proposition of law bearing directly upon the merits of the case not contained in the instructions, which he had not requested to be given, and which, if correct, placed the defendant before the jury in the light of a violator of the law. What he stated to be the law was not and is not the law. Nothing, it would seem, could be plainer than that if this practice is tolerated it must seriously interfere with that fairness which the law seeks to throw around a jury trial.

Infinitely more mischievous in its results would be this practice if tolerated than that of misstating the evidence or stating facts not in evidence.

The court holds the latter ground for a new trial. 55 Miss. 153; 56 Miss. 299. "By our statutes the method of communication between the court and the jury touching the law of the case being tried is clearly defined. The judge is the source from which the information is to be supplied." If a party "desired to have any principle given to the jury as the law governing his case he should have applied to the presiding judge for a charge to that effect." Bang v. State, 61 Miss. 363. If counsel misstates facts the jury can compare such statements with their own recollection of the evidence, but when he launches out into the domain of law they are either without a chart to go by, or, if there is conflict between counsel's statement and the instructions, they must decide between him and the judge. Ormsby v. Johnson, 1 B. Monroe 80; U. S. v. Columbus, 5 Cranch U.S.C. C. 305; Harrison v. Park, 13 Marshall 173; Hayne on New Trial 157.

4. The damages were excessive. I am aware of the indisposition of the court to disturb verdicts on this ground, but without going into any argument on the question, I submit that these damages are so exorbitant when compared with the injury shown to have been received and the pecuniary loss as to evince passion and prejudice and an utter disregard of right and justice, especially as the evidence shows indubitably that the injury was the result of a pure accident for which, if any one was to blame, it was the plaintiff himself, and an entire absence of recklessness and willfulness.

W. A....