Collins v. Southern Railway Company

• Decision Date: 29 October 1906
• Citation: 89 Miss. 375,42 So. 167
• Court: Mississippi Supreme Court
• Parties: THOMAS G. COLLINS v. SOUTHERN RAILWAY COMPANY

42 So. 167

89 Miss. 375

THOMAS G. COLLINS v. SOUTHERN RAILWAY COMPANY

Supreme Court of Mississippi

October 29, 1906

November 1906

FROM the circuit court of Washington county, HON. A. McC. KIMBROUGH, Judge.

Collins the appellant, was plaintiff and the railroad company, the appellee, defendant in the court below.

The suit was for damages for personal injuries sustained while attempting to board one of the trains of the defendant, the Southern Railway Company, and from a judgment sustaining defendant's demurrer to his declaration and dismissing the suit, he appealed to the supreme court.

The declaration alleged that under the ordinances of the city of Greenville, where the accident occurred, all steam and electric railways are required to bring their cars to a full stop at all crossings; that the crossing at which the accident occurred was within the city limits, and that it had been the custom of the Southern Railway Company to slow down before reaching this crossing, and sometimes to come to a full stop, and sometimes to run very slowly without coming to a full stop; and that, if the train did come to a full stop it was only for a moment. It alleged that it had been the constant practice and custom of persons, intending to take passage on the train of the defendant company, to board the train at this crossing when it stopped or slowed down; that the defendant company had, "without objection permitted, allowed, encouraged, and invited any intending passengers to board the train at said crossing, and to alight therefrom." It alleged that persons intending to board the train "usually grasp the handrail on the passenger coach, and walk along with the train while in slow motion and board the car at the moment of stopping, or take the handrail at the moment of stopping and board the train as it starts off; . . . that the stopping of the train is so brief that it does not permit intending passengers to wait until the train stops and then board it before it is again in motion." The declaration further alleged that on the morning of the accident the plaintiff went to the crossing, intending to take passage on the defendant's train; that the train slowed down to about two miles an hour, and that appellant caught the handrail of the coach, intending to board the same, while holding the handrail and walking along with the train, intending at the moment of its stopping to ascend the steps of the coach and thus board the train; that while holding the handrail the train was suddenly and without warning jerked forward, and plaintiff thrown to the ground, receiving the injuries of which he complains. It alleged that the plaintiff acted carefully and prudently, and could have boarded the train had it not been for the sudden and unlooked-for jerk, which wrenched his hands from the handrail. It alleged willful, malicious and grossly negligent conduct on the part of the engineer in charge of the train, but did not allege that when this jerking complained of happened the engineer in charge of the train or any other operative of the train knew that the plaintiff was walking by the train holding the handrail, or preparing to board the train.

Affirmed.

A. J. Rose, for appellant.

The statement in the declaration as to the stopping or slowing of the train at the crossing required by the city ordinances, is merely preliminary, though necessary, to the statement of the cause of action, and that statement is: (1) "The daily constant practice and custom of persons intending to take passage on said railway . . . to board said train at said crossing." (2) That this custom and practice of boarding and alighting from said train has been "permitted by defendant, which has, without objection, permitted, allowed, encouraged, and invited intending passengers to board said train at said crossing and to alight therefrom." (3) That the defendant accepts and receives all persons at said crossing as passengers. (4) The care of plaintiff in his conduct, and that the sudden jerking of the train was "willful, malicious, and grossly negligent."

Various definitions are given in the decisions and reports and in all of them good faith on the part of the intending passenger coupled with placing himself, at a proper time, and in a proper place, in a position to take passage, with the express or implied consent of the railroad, appear to be the requisites, and the only ones, to create the relation of carrier and passenger. Baldwin's American Railroad Law, p. 300, ch. 32; 5 Am. & Eng. Ency. Law (2d ed.), 491, and notes; 6 Cyc., 536; Chicago & E. I. R. Co. v. Johnson (111), 54 L. R. A., 830, quoting and approving the text in 5 Am. & Eng. Ency. Law (2d ed.), 488; Phillips v. Southern Ry. Co., 124 N.C. 123; 45 L. R. A., 164; Western, etc., R. R. Co. v. Voils (Ga.), 35 L. R. A. 655; Notes to Webster v. Fitchburg R. Co. (Mass.), 24 L. R. A., 521.

We have undertaken to show by these authorities that it was not necessary for the plaintiff in this case to have purchased a ticket, or to have actually got aboard the train in order to become a passenger, provided he presented himself for passage in a proper condition, in proper manner, at a proper place to be carried. That he presented himself in a proper condition is not questioned. Does the declaration show a presentation in a proper place?

The declaration alleges the place to have been one where the law required trains to stop, but this failure to stop is not the gravamen of the action. Plaintiff does not allege he placed himself at the crossing because the law required trains to stop there. He states the train did not stop in obedience to the law, or merely slow down, in disobedience to law, but in either event enabling passengers to get on in safety, and then the allegation is, first, "the daily constant practice and custom" of persons to take passage at the crossing, and second, "that this practice and custom . . . has been permitted, allowed, encouraged, and invited any intending passengers to board said train at said crossing and to alight therefrom.

Having presented himself at a place where it was the daily constant practice and custom to board the train, and also, this place being one where the defendant "permitted, allowed, encouraged, and invited any intending passengers to board said train," we submit that the declaration shows plaintiff was a passenger under all the well-recognized rules and definitions of the decisions and text writers.

The learned judge below was largely influenced by the case of Creech v. Charleston & N.W. Ry. Co. (S. C.), 45 S.E. 86; 31 Am. & Eng. Ency. Law (2d ed.), 903. In that case the action was for injuries in attempting to board a train, the declaration alleging failure to bring it to a full stop at a railroad crossing, the sudden increase of speed just before reaching the crossing, and that the regulation of the company required it to stop at the crossing. The declaration in that case alleged that the company was accustomed to receive and carry passengers who might board the train at the crossing, but did not allege any custom of the company to stop at the crossing for the purpose of receiving passengers "so as to warrant plaintiff in believing that he would be allowed to board the train as a passenger at that point. " "There was no allegation of any custom of defendant to receive as passengers at that point those who might board its moving trains." The supreme court in that case sustained a demurrer to the declaration and expressly placed its decision on the ground that while there was an allegation that the defendant company "was accustomed to receive and carry passengers" who might board the train at the crossing, yet there was no allegation that the company stopped at the crossing for the purpose of receiving passengers "so as to warrant the plaintiff in believing that he would be allowed to board the train as a passenger at that point."

The opinion clearly shows that if the declaration had contained an allegation of such custom to stop "for the purpose of receiving passengers so as to warrant plaintiff in believing that he would be allowed to board the train as a passenger at that point," it would have been good as against the demurrer. This is made clear by the reasoning of the court, for the opinion shows that in the trial court the circuit judge construed the declaration to mean that the defendant's train was accustomed to stop at the crossing to receive passengers, and for this reason overruled the demurrer. The supreme court reversed this ruling and held that the declaration did not so allege such custom, and on this ground, and this alone, sustained the demurrer.

In the Creech case there was no allegation of a custom to stop at the crossing for the purpose of receiving passengers "so as to warrant the plaintiff in believing that he would be allowed to board the train as a passenger at that point." The present declaration alleges more than a custom; it alleges an invitation. The only effect of a custom would be to create an implied invitation, and here we have the allegation of the invitation itself. Under the rule announced in the Creech case something must be done by the railroad to warrant an intending passenger in believing he would be allowed to board a train at a place other than a regular depot or passenger station, otherwise there would be no breach of duty to him, but an allegation that the company invited intending passengers to board a train at a particular point is sufficient, for this is all that is done by the railroad toward the public in reference to its regular passenger depots and stations. By its advertisements and publication of its schedule, passengers are invited to enter its trains at its designated stations, and he who presents himself...