Alabama & V.R. Co. v. Dear

• Decision Date: 08 January 1906
• Citation: 39 So. 812,87 Miss. 339
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. RICHARD DEAR
• Court: Mississippi Supreme Court

39 So. 812

87 Miss. 339

ALABAMA & VICKSBURG RAILWAY COMPANY v. RICHARD DEAR

Supreme Court of Mississippi

January 8, 1906

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

Dear the appellee, was the plaintiff in the court below; the railway company was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The plaintiff, a boy about eighteen years old, who sued by his next friend, claimed to have boarded the train of the appellant at a place called Greenfield. The testimony in favor of the railway company tended to show that he did not board the train, but concealed himself on the blind baggage or rods under the cars. The plaintiff claimed that when the train stopped at the station called Pearson he attempted to alight from the platform of the coach, but was not given sufficient time to get off of the train before it started with a jerk, throwing him to the ground, his foot going under the wheels and being crushed. The testimony for the railway company tended to show that as the train was stopping at Pearson the complainant undertook to alight from his place of concealment, either on the blind baggage or on the rods under one of the cars, and was injured in so doing. The declaration charged negligence on the part of the railway company in failing to stop long enough for the plaintiff, a passenger to disembark, and also in starting with a sudden jerk. The case went to the jury on the evidence, and resulted in a verdict for the plaintiff.

Certain instructions given for the plaintiff were assailed on appeal. They are in the figures and words following:

"(1) The court instructs the jury that it was the duty of the company to stop its train at Pearson long enough for all the passengers to get off before putting the train in motion again, and if the jury believe from the evidence Richard Dear was a passenger on the train, and that the train stopped at Pearson station, and before plaintiff had a reasonable time to get off the train, and while he was getting off, the train was put in motion again, the company was guilty of negligence.

"(2) The court instructs the jury that if Dear was a passenger on the train, and the company put it in motion without giving him a reasonable time to get off, and Dear was thereby hurt the plaintiff is entitled to recover all damages he has sustained which have been proven by the evidence, unless he was guilty of contributory negligence."

Judgment affirmed.

McWillie & Thompson, for appellant.

The case is one in which the contributory negligence of the plaintiff, appearing from his own testimony, exonerated the defendant from all liability. Bardwell v. Railroad Co., 63 Miss. 574; Howell v. Railroad Co., 75 Miss. 242 (s.c., 21 So. 746); Simmons v. Railroad Co., 34 Am. & Eng. R. Cas. (N. S.), 454; Lee v. Railroad Co., 31 Ib., 923.

Where the plaintiff has clearly been guilty of contributory negligence, it is error to refuse a peremptory charge for the defendant. Railroad Co. v. Strauss, 75 Miss. 367 (s.c., 22 So. 822).

The instruction for the plaintiff, numbered one, should not have been given. It is true as an abstract proposition of law that it is negligence to start a train before a passenger has had time to get off, but to so instruct the jury in a case like the one at bar, considering its peculiar facts, is misleading. Negligence must be the proximate cause of the injury and be unaccompanied by negligence contributing to it on the part of the plaintiff. The instruction should not have been given without some modification which would keep in view the real controversy arising on the evidence.

The plaintiff's instruction number two is subject to a like objection. It charged the jury that if plaintiff "was a passenger on the train, and the company put the train in motion without giving him a reasonable time to get off, and he was thereby hurt, he was entitled to recover." As will be seen, this instruction ignores the evidence going to show contributory negligence. The instruction, under the peculiar facts of this case, should have been modified so as to include the...