Mississippi Cent. R. Co. v. Pillows

CourtUnited States State Supreme Court of Mississippi
Citation101 Miss. 527,58 So. 483
Decision Date22 April 1912
Docket Number15649
PartiesMISSISSIPPI CENTRAL RAILROAD COMPANY v. I. S. PILLOWS

APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.

Suit by I. S. Pillows against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals.

This suit was brought by the appellee, who was plaintiff in the court below, against the Mississippi Central Railroad Company, for injuries received by the appellee, who was a minor, at the hands of the porter of the appellant railroad company; the declaration alleging that plaintiff bad bought a ticket from Wanilla to Silver Creek, and that when he boarded the train and became a passenger the porter on the train pushed him off while the train was running, and the train ran over his leg and cut it off. There was a jury and verdict for one thousand dollars, and the defendant appeals.

As originally drafted, the declaration alleged that, in boarding the train, the passengers crowded the plaintiff, and thus he was pushed from the platform. Afterwards, by permission of the court, the plaintiff amended his declaration so as to allege that the porter pushed him off. Plaintiff testifies that he bought a ticket and boarded the train just as it began to move away from the station, but after he got on the platform the porter gave him a shove, and he lost his balance and fell backward off the train, which ran over his leg and cut it off and otherwise bruised and injured him. The contention of the railroad company was that he did not buy a ticket and was not a passenger, but was a trespasser, and that the porter did not shove him off, but that he fell off and the defendant introduced testimony to this effect. There was a sharp conflict in the testimony of the plaintiff and defendant. The ticket agent was introduced to show that the last ticket sold before the departure of the train inflicting the injury, between the points above named, was No. 2475 while the ticket produced by plaintiff at the trial was No 2476. This evidence was brought out by witness Marero, as a part of his report to the superintendent and is as follows "(Defendant offered in evidence as Exhibit A, that part of the report which shows the number of the ticket sold upon that occasion. Counsel for plaintiff insist upon the entire report being offered. The court declined to compel that to be done, and plaintiff excepted.) As the accident occurred after the train had started, and all passengers had gotten on train, I took note of last ticket sold to Silver Creek, which was 2475, after No. 2 left. I did this in case party should send some one else to buy a ticket to Silver Creek and claim this as his ticket." The defendant offered to prove by Dr. Perry that Miles Pillows, father and next friend of the injured boy, had stated that he had contrived to purchase a ticket so that the claim might be made that the injured boy was a passenger. Miles Pillows himself was not a witness, and the court declined to permit proof of what he had said about purchasing the ticket.

Affirmed.

Jeff Truly, for appellant.

Is it still the law in Mississippi that the plaintiff must make out his case by the preponderance of the evidence--even if the defendant be a railroad company?

Is it still the law in Mississippi that a plaintiff must sustain the material allegations of his declaration in order to obtain a verdict--even if the defendant be a railroad company?

Is it still the law in Mississippi that plaintiff can set up one state of facts in a declaration and sustain his case by proving another and different state of facts--even though the defendant be a railroad company?

Is it still the law in Mississippi that instructions to the jury must require them to believe "from the evidence" before they can return a verdict against a defendant--even though that defendant be a railroad company?

If any one of the above interrogatories which are respectfully propounded to the supreme court of the state be answered in the affirmative, the inevitable result is the reversal of this case.

Is it still the law that the plaintiff must sustain by credible proof the material allegations of his declaration in order to maintain a recovery?

If so, this case must be reversed.

The facts set out in the original declaration were (1), that the plaintiff was a passenger and held a ticket, (2) that he was shoved off the platform by other passengers, (3) that this was by reason of the neglect and recklessness of the employees of the railroad company, and (4) that he was injured as a consequence of such neglect.

The amended declaration as shown by the motion to permit the amendment and as shown by the record simply changed the second averment contained in the declaration first filed so that when the case actually came before the court for trial the plaintiff's declaration contained these four (4) material allegations, each one of which it was necessary for him to prove by credible testimony; otherwise, under the accepted rule of law, he must fail inevitably of recovery. Those allegations were:

(1) That he was a passenger on the train, holding a ticket, entitling him to transportation.

(2) That he was shoved off by an employee of the railroad company.

(3) That this was through the neglect and recklessness of the employees.

(4) That he was injured thereby.

These were the issues that the railroad company was called on to defend or to controvert. These were the averments that the plaintiff was called on to prove. His success depended, under the pleadings in the case, upon each of the four allegations being sustained. He could not recover unless he had proven that the accident was caused by the negligence of the employees of the defendant, nor unless he could prove that he was shoved off by some employee of the defendant, nor unless he could prove that he was a passenger and held a ticket, entitling him to carriage.

We wish specially to impress upon the court that this was a suit founded upon a breach of duty upon the part of the railroad company in failing to carry a passenger safely to his destination, as shown by the ticket which he alleged he had purchased and held. The declaration avers that "plaintiff did on said date purchase a ticket and pay therefor, and the said agent did on said day execute, issue and deliver to him a ticket and receive the money therefor, entitling him to a safe, orderly and comfortable passage from the said Wanilla to said Silver Creek, upon the said trains of said defendant, and that the said plaintiff became a passenger, entitled to the care, attention and services of the employees of said defendant. And further, "that the said employees did not perform their duty as aforesaid, and did not give him a comfortable, safe and convenient entrance to said train." So the claim for damages propounded by plaintiff was based upon the alleged violation of a duty by the defendant as a common carrier to one of its passengers.

These being the issues tendered by the declaration, the plaintiff could not recover a verdict by proving any other state of facts. Such a course would be a departure from the pleadings, and would be unwarranted and unallowable. It would scarcely be contended, we submit, that having alleged in his declaration that he was injured while a passenger on a train, a verdict would have been sustained in his behalf upon proof that he was struck by a running train or injured while on its tracks or any other of the familiar instances which will occur to the mind of the court. Yet, in this case, as we will undertake to show, the departure is no less radical and unauthorized.

The second instruction for the appellee, specially objected to and made a ground of exceptions in the motion for a new trial and in the assignment of error, is as follows: "The court instructs the jury that if they believe the porter recklessly and in total disregard of the plaintiff's position wilfully pushed him from the train while it was in motion, and because of this plaintiff's leg was cut off, then their verdict should be for the plaintiff regardless of the fact whether he was a passenger or trespasser or had a ticket or not."

We assert that this instruction was fatal error for many reasons. (1) It authorized a recovery without regard to whether the allegations of the declaration were sustained or not. It predicated recovery upon the sole fact of whether the porter had caused the accident. This instruction told the jury that if they believed the man was injured and that the negligence of the porter caused the injury that then the averments of the declaration might be thrown aside; the issues made by the pleadings might be ignored, and they should find for the plaintiff whether he had a ticket or not; whether he was a trespasser or not; thus allowing the plaintiff to recover not by proving the material allegations in his declaration, but by proving an entirely different state of facts. (2) This instruction is wrong again, we submit, because it singles out and accentuates two of the alleged facts and then comments upon the weight of the evidence in violation of our statute.

There was no doubt that the man had been injured; that fact was self-evident. The physical condition of the plaintiff demonstrated his injuries, so this instruction said to the jury, "if you believe this one fact--that is that the porter shoved the plaintiff off the train, you must find for the plaintiff," thus commenting directly upon the weight of evidence. In the face of this instruction it was vain for the defendant to argue to the jury that the whole case as shown by the proof was a conspiracy, deliberately concocted and contrived to filch money from the coffers of the railroad company....

To continue reading

Request your trial
14 cases
  • Alabama Great Southern Ry. Co. v. Daniell
    • United States
    • Mississippi Supreme Court
    • December 7, 1914
    ...99 Miss. 533; R. R. Co. v. Hardy, 88 Miss. 432; Williamson v. State, 95 Miss. 671; Sou. Ry. Co. v. Floyd, 99 Miss. 519; Miss. Cent. R. R. Co. v. Pillows, 58 So. 483; Hooper v. State, 83 Miss. 402; Scates State, 64 Miss. 644; Manhaffy v. R. & B., 100 Miss. 122. No error was made in admitting......
  • Kramer Service, Inc. v. Wilkins
    • United States
    • Mississippi Supreme Court
    • February 20, 1939
    ... ... 625 184 Miss. 483 KRAMER SERVICE, INC., v. WILKINS No. 33532 Supreme Court of Mississippi, Division A February 20, 1939 ... APPEAL ... from the circuit court of Pike county ... Co. v. Silver Saver Stores, Inc., 148 So. 367, 166 Miss ... 882; Miss. Cent. R. Co. v. Pillows, 101 Miss. 527, ... 58 So. 483; G. M. & N. R. Co. v. Hudson, 170 So. 369, 142 ... ...
  • Yazoo & M. V. R. Co. v. Lamensdorf
    • United States
    • Mississippi Supreme Court
    • January 10, 1938
    ... ... 426 YAZOO & M. V. R. CO. v. LAMENSDORF et al No. 32808 Supreme Court of Mississippi January 10, 1938 ... (Division ... 1 ... Where ... scene of ... Co. v ... Eakin, 79 Miss. 735; I. C. R. Co. v. Sumrall, ... 96 Miss. 860; Miss. Cent. R. Co. v. Hanna, 98 Miss ... 609; G. M. & N. R. Co. v. Arrington, 107 So. 378; ... Marx v ... ...
  • King v. King
    • United States
    • Mississippi Supreme Court
    • May 25, 1931
    ... ... comparison is unprecedent in Mississippi ... Moye v ... Herndon, 30 Miss. 110; Jones v. Finch, 37 Miss. 461; ... Coleman v ... 779; So. Ry. Co. v. Ganong, 99 ... Miss. 546, 55 So. 355; Miss., etc., R. Co. v. Pillows, 101 ... Miss. 527, 58 So. 483 ... A ... correct, emphatic instruction for proponent ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT