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

• Decision Date: 18 March 1929
• Docket Number: 27721
• Citation: 121 So. 120,153 Miss. 428
• Parties: BURKS v. YAZOO & M. V. R. R. CO. [*]
• Court: Mississippi Supreme Court

121 So. 120

153 Miss. 428

BURKS v. YAZOO & M. V. R. R. CO. ^[*]

No. 27721

Supreme Court of Mississippi

March 18, 1929

Division B

1 RAILROADS. Boy riding on blind between mail and baggage cars was trespasser, whether invited by engineer or not.

Boy riding on blind between mail and baggage cars of train which was derailed and wrecked was trespasser, whether he was riding on blind at invitation or suggestion of engineer or not.

2 RAILROADS. Railroad owed trespasser riding on blind between mail and baggage cars no duty except not to injure him willfully or show reckless disregard of his safety.

Railroad company owed trespasser riding on blind between mail and baggage cars no duty, except not to injure him willfully or wantonly and not to show reckless disregard of his safety which might proximately cause injuries.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by J. A. Burks against the Yazoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Vollor & Kelly, and Chaney & Culkin, for appellant.

The general rule is that where an engineer or conductor, or other employee of a railroad company, invites or permits one to ride on a train in violation of the rules of the company, that the company will only be liable to such person, so riding in violation of its rules, for injuries suffered by reason of its gross negligence or wilful misconduct.

The application of this rule, however, would not render the decedent a wilful trespasser. If he undertook to ride between the cars, on the outside of the train, from Vicksburg to Port Gibson, on the invitation of the engineer in charge of the train, and there is no substantial conflict on this point, he had a right to assume that the engineer was not exceeding his authority in extending the invitation. If he undertook to ride the train under the belief that he had a right to do so on the invitation of the engineer, he could not be a wilful trespasser, even though the engineer was without authority to extend the invitation. This seems to be the general rule. 33 Cyc. 763; Ala. & V. Ry. Co. v. Livingston, 84 Miss. 1, 36 So. 256. We presume that, under the general rule, the court will hold that the decedent was a trespasser or a mere licensee since the engineer apparently had no authority to invite him to ride the train, but that he was not a wilful trespasser. That, in other words, he occupied a more favorable position than he would have occupied if he had undertaken to steal the ride or to ride without the knowledge or permission of someone in charge of the train. We concede that the decedent was a trespasser or licensee, but contend that he had a right to assume that the engineer did not exceed his authority when he invited him to ride on the outside of the train and that he was not, therefore, a wilful trespasser, and that it was the duty of the defendant, at least to exercise such care and caution for his protection and safety as an ordinarily prudent person would have done similarly circumstanced.

Hirsch, Dent & Landau and Chas. N. Burch and H. D. Minor, both of Memphis, Tenn., for appellee.

It was appropriately pleaded and proven to the satisfaction of the jury that the decedent was a trespasser upon the blind of said train. That he was violating both the state and federal law in this regard. It was shown that no authority was or could be given to him by the engineer to ride on the train, and that he was there on his own volition for an unlawful purpose. In I. C. R. R. Co. v. Messina, 240 U.S. 395, the supreme court of the United States decided that an engineer had no lawful right to give a stranger permission to ride on an engine on an interstate train. This question has, however, been eliminated from this case by the finding of fact by the jury that the decedent was not on this train by permission or with the knowledge, consent or approval of the engineer. The decedent was likewise violating the law of this state at the time he lost his life, and if by permission of the engineer, he was on the train, he is in no better attitude. If there is any thoroughly established rule of law in this state, it is that one which denies a person damages proximately and solely resulting from his violation of the criminal law. Grapes Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.

Appellant says: "We shall concede that the decedent was a trespasser, or a licensee, but that he had a right to assume that the engineer did not exceed his authority when he invited him to ride on the outside of the train." May we inquire by what process of reasoning or indeed any preadventure, it can be conceived that the decedent had cause to think, if he so thought that he was entitled to passage to Port Gibson on the blind, strapped to the blind, on this train? He knew as...