72 So. 779 (Miss. 1916), 16861, Illinois Cent. R. Co. v. Messina

Docket Nº:16861
Citation:72 So. 779, 111 Miss. 884
Opinion Judge:COOK, P. J.
Party Name:ILLINOIS CENTRAL R. CO. ET AL. v. MESSINA
Attorney:R. V. Fletcher, H. D. Minor and Mayes & Mayes, for appellant. Barbour & Henry, Burch & Stricker, Clayton D. Potter and Whitfield & Whitfield, for appellee.
Judge Panel:COOK, P. J. POTTER, J., being of counsel took no part in the decision of this case. SMITH, C. J., concurring. STEVENS, J., dissenting. SMITH SMITH, C. J. (concurring). STEVENS STEVENS, J. (dissenting).
Case Date:October 30, 1916
Court:Supreme Court of Mississippi
 
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Page 779

72 So. 779 (Miss. 1916)

111 Miss. 884

ILLINOIS CENTRAL R. CO. ET AL.

v.

MESSINA

No. 16861

Supreme Court of Mississippi

October 30, 1916

APPEAL from the circuit court of Holmes county, HON. MONROE MCCLURG, Judge.

Suit by V. P. Messina against the Illinois Central Railroad Company and another. Upon remand from the supreme court of the United States.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

R. V. Fletcher, H. D. Minor and Mayes & Mayes, for appellant.

Barbour & Henry, Burch & Stricker, Clayton D. Potter and Whitfield & Whitfield, for appellee.

COOK, P. J. POTTER, J., being of counsel took no part in the decision of this case. SMITH, C. J., concurring. STEVENS, J., dissenting.

OPINION

[111 Miss. 885] COOK, P. J.

This case was affirmed by this court in an opinion reported in Yazoo & M. V. R. Co. v. Messina, 109 Miss. 143, 67 So. 963. An appeal was taken by appellant to the supreme court of the United States, and our judgment was reversed by the supreme court of the United States (240 U.S. 395, 36 S.Ct. 368, 60 L.Ed. 709), and the cause remanded to this court for further proceedings. We here quote the opinion of the supreme court of the United States:

"This is an action for personal injuries suffered by the defendant in error while upon a train running from Mississippi to Tennessee. He had paid no fare, but was upon the tender, as he said, by permission of the engineer. The engineer had notice that the water was high between Beatty and Sawyer, and over the track at Sawyer. After passing Beatty the train was going at a rate variously put as thirty-five to fifty or sixty miles an hour when it ran into the water and was thrown from the track. The plaintiff was caught between the tender and a car and badly hurt. The plaintiff got a judgment for ten thousand dollars, which was sustained by the supreme court. At the trial the jury were instructed that the defendant railroad was presumed to be negligent, and that if the evidence left it doubtful it was their duty to find full damages for the plaintiff. The judge refused to instruct them that the engineer had no authority to permit the plaintiff to ride on the train 'at the place he was in', but the request for this instruction was based upon the company's rules, not upon the act to regulate commerce.

Page 780

The supreme court, however, discussed the act of Congress and held that it did not apply to the case.

"By section 1 of the act [U. S. Comp. St. 1913, sec. 8563], as amended by Act June 29, 1906, ch. 3591, 34 Stat. 584, and still in force, any common carrier violating the provisions against free transportation is guilty of a misdemeanor and subject to a penalty, and any person other than those excepted 'who uses any such interstate . . . [111 Miss. 886] free transportation is made subject to a like penalty. No doubt the enactment had somewhat more formal uses especially in view, but we see no reason for limiting the prohibition to them. The word 'such,' like 'said,' seems to us to indicate no more than that free transportation had been mentioned before. We cannot think that if a prominent merchant or official should board a train, and by assumption and an air of importance should obtain free carriage, he would escape the act. We are of opinion, therefore, that the act was construed wrongly. Assuming, as it has been assumed, that the defendant's liability was governed otherwise by state law, it seems doubtful under the state decisions whether the plaintiff would have been allowed to recover, had the court been of opinion that the act of Congress made his presence on the train illegal. Western Union Telegraph Co. v. McLaurin [108 Miss. 273] 66 So. 739 [L. R. A. 1915C, 487]. And although there are expressions in the opinion below that raise a doubt, the...

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