Alabama Great Southern Railroad Company v. Harris

• Decision Date: 06 November 1893
• Citation: 71 Miss. 74,14 So. 263
• Court: Mississippi Supreme Court
• Parties: ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. ROBERT HARRIS

14 So. 263

71 Miss. 74

ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. ROBERT HARRIS

Supreme Court of Mississippi

November 6, 1893

October 1893

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Appellee a minor, by his next friend, brought this action to recover of the appellant for personal injuries. The first count of the declaration alleges that plaintiff, a passenger on one of defendant's passenger-trains, in the state of Alabama was assaulted by the porter of the train, and was knocked from the platform to the ground, receiving the injury complained of. The second count of the declaration differs from the first only in failing to allege that plaintiff, at the time of receiving the injury, was a passenger.

On the trial, plaintiff testified that he was a passenger, having procured a ticket, which he had surrendered to the conductor but the employes of the defendant in charge of the train contradicted this, and denied that he was a passenger on the train at the time he was injured, and their testimony, if true, would seem to show that plaintiff was injured while stealing a ride under one of the cars. Plaintiff testified that when the train was approaching Tuscaloosa, Alabama, he arose to leave the coach, and had reached the platform, when the porter of the train offered to sell him a railroad ticket, which plaintiff declined to buy, stating that he would buy his tickets from the company, whereupon plaintiff turned to leave, when he was struck from behind by the porter, and fell senseless from the platform to the ground, and his right hand was crushed by the wheels and badly mutilated, causing the loss of four fingers.

Among other instructions given for the plaintiff were the following:

"1. If the jury believe from the testimony that the plaintiff was on board defendant's train, as charged in the declaration, and that he was knocked off said train by an employe thereof, and injured thereby, then you should find for plaintiff, although you may believe him to be (or to have been) a vagrant negro."

"3. If the jury believe, from the testimony, that plaintiff was on board the train of defendant on May 15, 1891, either with or without a ticket, and that, as the said train was approaching Tuscaloosa, the porter, or an employe of said defendant company, knocked the plaintiff off said train, and the plaintiff's hand was cut by the said train, then the jury should find for the plaintiff."

There was a verdict for plaintiff for $ 1,500, and judgment accordingly, and, after motion for new trial overruled, defendant appealed.

Reversed and cause remanded.

Fewell & Brahan, for appellant.

A railroad company is not liable for the wilful act of its servant beyond the scope of his general authority, unless it be proven that there was antecedent special authorization, or subsequent ratification. Pattison's Railway Acc. Law, 112; 2 Am. & Eng. Enc. L., 754.

According to plaintiff's own testimony, the porter was accomplishing some purpose of his own, which had no necessary connection with his duty to the railroad company. The first and second instructions for the plaintiff were, therefore, erroneous, as they permitted a recovery under the circumstances detailed by plaintiff, without regard to whether he was a passenger or a trespasser.

Miller & Basking, for appellee.

The court will not disturb the verdict merely because the jury could or ought to have found a different verdict. There is evidence to sustain it, and it matters not that there were conflicts in the testimony. The court below, having opportunity to hear the witnesses and observe their manner,...