Alabama & V.R. Co. v. Livingston

• Decision Date: 04 April 1904
• Citation: 84 Miss. 1,36 So. 256
• Court: Mississippi Supreme Court
• Parties: ALABAMA AND VICKSBURG RAILWAY CO. v. DAVID LIVINGSTON

36 So. 256

84 Miss. 1

ALABAMA AND VICKSBURG RAILWAY CO. v. DAVID LIVINGSTON

Supreme Court of Mississippi

April 4, 1904

FROM the circuit court of Scott county. HON. JOHN R. ENOCHS Judge.

Livingston appellee, was plaintiff, and the railway company, appellant was defendant in the court below. From a judgment for $ 2,000 in plaintiff's favor, the defendant appealed to the supreme court.

The evidence for plaintiff was that he and a companion were at Forest, a station on defendant's road, and intended to take the passenger train going east late that night for Meridian. About 8 or 9 o'clock that night they were in a barber shop, and in a conversation with a Mr. Bustin, who was track supervisor of defendant's road, said something about the lateness of the time for the arrival of the passenger train, when Bustin told them that they could go on the through freight train. They in a short time thereafter got on the through freight, and the conductor came around and asked them if there were some cattle to go on the train, to which they replied they did not know. The conductor then went about his business, and in twenty minutes thereafter the train left Forest, and when about half way to the next station the conductor came to them and told them they could not ride on that train, and that he would put them off at Lake. When the train reached Lake it did not stop, but went by three or four miles, when the train was stopped, and they were put off. Plaintiff testified that he informed the conductor that Bustin told him he could ride on the train, or he would not otherwise have gotten on. Plaintiff could not reason with the conductor; offered to pay him for his passage, but every time he said anything about pay the conductor would curse him, and every time he tried to reason with the conductor he would curse and abuse him; that he then offered the conductor $ 10 if he would take him to the next station, and the conductor replied: "I will not take your money; I believe you are a damned railroad spy anyhow;" it was a cold, dark night, and was raining, and plaintiff and his companion had to walk back to Lake three or four miles. The testimony for defendant was that Bustin did not tell plaintiff or his companion that they could ride on the through freight train; that the conductor never saw them until the train left Forest, and that he told them between Forest and Lake that they could not go on that train, and that he would put them off at Lake; that when they reached Lake it was raining, and the smoke was so heavy the signal to stop could not be seen, and the train ran through about a mile, when it stopped, and plaintiff and his companion were then put off without insult; that Bustin had no authority to give any one permission to ride on the freight train; and that the train was not authorized to carry passengers except when they were in charge of cattle. Defendant's motion for a new trial was overruled.

McWillie & Thompson, for appellant.

The liability of a railroad company for ejecting a passenger or other person for cause at a place distant from any station or dwelling house is purely statutory. Great Northern R. Co v. Miller, 19 Mich. 305.

There is no rule of the common law requiring a person who is ejected for cause to be put off at any particular place, only it must be at a place where it will not subject him to great peril; therefore such person cannot, at common law, recover for being put off at an inconvenient place. Great Western R. Co. v. Miller, supra; Hall v. So. Car. R. Co., 28 So. Car., 261; So. Fla. R. Co. v. Rhodes, 25 Fla. 40.

This is entirely agreeable to the doctrine of this court that to train trespassers railway companies owe no duty save to refrain from doing them wanton or willful hurt. Railroad Co. v. Burnsed, 70 Miss. 437.

The plaintiff undertook to show that he was not a trespasser because, as he testified, he had gotten verbal permission from one Bustin, a track supervisor, to ride on the freight train. As the court will see, Bustin and two other persons who were present at the time of the alleged conversation (Simmons and Harrison), deny that any such permission was given, but it was not pretended that Bustin had any authority to grant such permission, and, singularly enough, after introducing the evidence of such permission, the plaintiff's counsel asked and obtained an instruction to the effect that Bustin had no such authority. The plaintiff's testimony leaves him in a peculiar attitude as to this matter, since he says he relied on Bustin's word as giving him permission to ride on the train, but did not know that the train could not take passengers without permission. According to his own showing, he proceeded on the mere verbal authorization of a man whom he did not know to be authorized to give such permission and who in fact had no such authority. If such permission was given, and he relied on it, it was his own folly, and it had no effect on the duties of the other servants of the company who knew Bustin could not give such permission and that they had to obey orders without reference to Bustin, who was an inferior officer belonging to a department that had nothing to do with train service.

The verdict is wrong because the plaintiff did not have the implied assent of the conductor to ride on the train and...