Andrews v. Yazoo & M.V.R. Co.

• Citation: 38 So. 773,86 Miss. 129
• Parties: OBADIAH B. ANDREWS v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Decision Date: 17 July 1905
• Court: United States State Supreme Court of Mississippi

38 So. 773

86 Miss. 129

OBADIAH B. ANDREWS v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

Supreme Court of Mississippi

July 17, 1905

FROM the circuit court of Sunflower county, HON. A. MCC. KIMBROUGH, Judge.

Andrews the appellant, was plaintiff, and the railroad company, the appellee, defendant in the court below. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

The evidence for the plaintiff was in substance as follows Plaintiff, a traveling inspector for an insurance company was in Ruleville (a small village), and, having some acquaintance with the depot agent at tat place (a Mr Travis), went to the depot more than two hours before the train he desired to take was due, and going into the depot through a side entrance provided for the employes of the company, spoke to the agent through a window, and requested the privilege to enter the private office and to do some writing, which the agent permitted him to do. The agent, at his request, furnished him with a place to write, some stationery, including pen and ink, and he began to write up his daily report to the insurance company. Plaintiff testified that he went to the station to earth a train. "I walked into a little anteroom, and accosted Mr. Travis, who was behind the desk, and said, 'Mr. Travis, I have an hour or so until train time, and I know it is against the rules of the railroad company, but I have some letters or reports to make up, and I would like to come in and write these, if agreeable to you.' And he consented, and I walked around into the once, where the tickets were, and told him I had no stationery of my own, that I didn't have my grip, and that I would like to sponge on him, I believe, for a little stationery, and he very kindly gave me some, and his pen and ink; and I had written several pages, and had my back to him. He remarked, 'I understand you didn't have a very good opinion of me the last time you were here;' and I stated I had not thought much about it, and had not thought of it. He said, 'I heard you made some remark about me;' and I asked what it was, and he told me what it was, and said, 'I have a friend who overheard you;' and I said, 'Get your friend, and we will go over the matter;' and he went out, and was gone some time, and came back with Mr. Bailey, his friend, and he said, 'Here is the man who heard you make the remark about me;' and I got up and sat on the corner of the desk, and Mr. Bailey said, 'You made the remark at Moorehead;' and I said, 'I don't know that I did make this remark, but you seem to want it that way, and seem to be looking for trouble, and you can let it stay that way.' Mr. Travis said, 'I want an apology,' and I said if I thought it necessary I would make one. Then Mr. Travis drew back his hand, and I made a dive for him, and he turned and pulled out a pistol." He further stated that Travis struck him over the head with the pistol, inflicting a wound. He had not bought a ticket.

Judgment affirmed.

Johnson, Chapman & Neill, for appellant.

The proper construction of the statute, Code 1892, § 4313, is that the agent must preserve order as long as the station house is open for the reception of passengers. This duty is not confined to the hour before the arrival of trains and one-half hour afterwards; the statute does not mean that the company is bound only to preserve order in the limits of times named therein. If it is the duty of the agent to preserve order, then, certainly, the company would be responsible for an assault and battery committed by the agent himself. In the keeping of order in the station house the agent is the servant of the company, and it is responsible for his acts, both of omission and commission, in the line of his duty. King v. Railroad Co., 69 Miss. 245.

If this agent was under duty of preserving order in the station house, although more than an hour before the arrival of the train, then the company is liable for any neglect of the duty, and most certainly for an assault and battery committed by the agent. We think the principle of this case is in line with the decisions which require the conductors of trains to preserve order, and make the company liable for any injuries to passengers of which the conductor has notice, and which he ought by reasonable care to have prevented. Railroad Co. v. Burk, 53 Miss. 200; Railroad Co. v. Minor, 69 Miss. 710; Ward v. Railroad Co., 79 Miss. 145.

It was within the scope of the duty of the railroad agent to preserve order in its station house and to treat the parties who came into the station house for the purpose of taking trains with courtesy. The agent was in the scope and line of his employment. It was a part of his duty while in charge of the station house not to attempt by violence to redress his own grievance, real or supposed, upon persons awaiting trains, or, for that matter, upon persons who were in the station house. We think the case is clearly under the decision of Richburger v. American Ex. Co, 73 Miss. 171; Pullman Co. v. Lawrence, 74 Miss. 783; Ward v. Railroad Co., 79 Miss. 145.

Mayes & Longstreet, for appellee.

It will be observed by the court that the evidence demonstrates a total absence of those elements and conditions which, under the law, create the relation of carrier and passenger.

The general rule is, "The relation of carrier and passenger begins when one puts himself in the care of the carrier, or directly within its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier." 5 Am. & Eng. Ency. Law (2d ed.), 488; Spannagle v. Chicago, etc., R. Co., 31 Ill.App. 460; Allender v. Chicago, etc., R. Co., 37 Iowa 64; Webster v. Finchburg R. R. Co., 161 Mass. 298.

The facts of this case show that Andrews had at no time and in no wise put himself in the care of the carrier or directly within its control; that he did not...