29 So. 76 (Miss. 1901), Illinois Central Railroad Co. v. McLeod

Citation:29 So. 76, 78 Miss. 334
Opinion Judge:CALHOON, J.
Party Name:ILLINOIS CENTRAL RAILROAD CO. v. ELIZABETH A. MCLEOD ET AL
Attorney:Mayes & Harris and J. M. Dickinson, for appellant. Monroe McClurg, for appellee.
Case Date:January 14, 1901
Court:Supreme Court of Mississippi
 
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Page 76

29 So. 76 (Miss. 1901)

78 Miss. 334

ILLINOIS CENTRAL RAILROAD CO.

v.

ELIZABETH A. MCLEOD ET AL

Supreme Court of Mississippi

January 14, 1901

         October, 1900

          FROM the circuit court, second district, of Yalobusha county. HON. Z. M. STEPHENS, Judge.

         Mrs. McLeod, the widow, and Alexander R. McLeod, the son of Rufus McLeod, deceased, the appellees, were the plaintiffs in the court below; the railroad company was defendant there. The suit was for the death of Rufus McLeod. From a judgment for $ 4,000 in plaintiffs' favor, the defendant appealed to the supreme court. The opinion of the court fully states the facts.

          Reversed and remanded.

         Mayes & Harris and J. M. Dickinson, for appellant.

         At the outset of this discussion, we wish it clearly understood that we are not contending in this case for the rule laid down in Thorogood v. Bryan, 8 C. B., 115. We recognize the fact that the rule, as laid down in that case, has been generally denied by the courts of last resort in the United States, although there are cases to be found which approve it. See Prideaux v. Mineral Point, 43 Wis. 513; Houfe v. Fulton, 29 Wis. 296; Artz v. Chicago R. H. Co., 34 Iowa 153; Slater v. Railroad Co., 71 Iowa 209; Lake Shore v. Miller, 25 Mich. 236.

         The case which we think clearly announces the true rule, and the one which we think is applicable to this case, is the case of Little v. Hackett, 116 U.S. 366. At page 379 the court says: "There is no distinction in principle, whether the passenger be on a public conveyance like a railway train or an omnibus, or be on a hack hired from a public stand in a street from a driver. Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel and the place they wish to go. If he is their agent so that his negligence can he imputed to them to prevent their recovery against the third party, he must be their agent in all other respects so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employment. But as we have already stated, responsibility, cannot, within the recognized rules of law, be fastened upon one who was in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it, no such liability can arise. The parties hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it."

         The rule as laid down in Elliott on Railroads, vol. 3, par. 1174, is as follows: "The general rule is that the negligence of a driver of a vehicle with whom the injured party is riding will not be imputed to such injured person. But where persons riding in a vehicle all take part in managing it and the team drawing it, there is reason for holding that all are bound to exercise ordinary care to avoid collisions with railroad trains. Where the driver is the agent or servant of the injured person, it is held that the negligence of the former is attributable to the latter. It is obvious that where the negligence of the person who receives the injury contributes to the injury, he cannot escape the consequences of his own carelessness. Thus where one person riding with another saw the headlight of an approaching engine, it was held that he was guilty of contributory negligence in failing to warn the driver of the vehicle in which he was riding. If the person riding in the vehicle knows the driver is negligent, and he takes no precaution to guard against injury, he cannot recover for injury in such case. The negligence is his own and not simply that of the driver."

         The author cites in support of the text the following cases, all of which we have examined, and they fully support the text: Dean v. R. R. Co., 39 Pa. St., 514; Smith v. R. R. Co., 87 Me. 339; Brickell v. R. R. Co., 120 N.Y. 290; Miller v. R. R. Co., 129 Ind. 97; Hoag v. R. R. Co., 111 N.Y. 199; R. R. Co. v. Howard, 124 Ind. 280; Township v. Anderson, 114 Pa. St., 643.

         The rule seems to be well settled that a party riding in a hired conveyance with full knowledge of his surroundings, with opportunity to protect himself, must take precautions to do so, and he is not relieved of the ordinary rule applying to persons approaching railroad crossings simply by the fact that he is riding in a hired conveyance. He must do nothing which would interfere with the conduct of the driver, and it is his duty to interpose and save himself, if he sees or has reason to know that he is going into a place of danger, and he must look out for himself where he can and where the opportunities for knowing and appreciating the situation are as much with him as with the driver of the vehicle.

         Alabama, etc., Ry. Co. v. Davis, 69 Miss. 444, is a case in which this court elaborately discusses the question as to whether the injured party who was being driven in the buggy was herself guilty of negligence. The court held that she had done all that could be reasonably required of her under the circumstances....

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