Davis v. Louisville, New Orleans & Texas Railway Co.

• Decision Date: 02 November 1891
• Citation: 69 Miss. 136,10 So. 450
• Parties: HENRY DAVIS v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY
• Court: Mississippi Supreme Court

10 So. 450

69 Miss. 136

HENRY DAVIS v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY

Supreme Court of Mississippi

November 2, 1891

October, 1891

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

Action by appellant against appellee for personal injuries. Peremptory instruction for defendant. The evidence of the plaintiff, in the light of which the propriety of the peremptory instruction is determinable, is stated in the opinion.

Reversed and remanded.

Wilford H. Smith, for appellant.

It was not negligence per se for plaintiff, in obedience to the conductor's order, to attempt to pass into the baggage car while the train was in motion. 36 N.Y. 135; 37 N.Y. 287; 49 N.Y. 47; 59 N.Y. 351; 53 Ill. 510; 66 N.C. 794; 46 Tex. 356; 2 Woods' Ry. Law, 1151; Georgia pacific Ry. Co. v. West, 66 Miss. 310.

Mayes & Harris, for appellee.

It was manifestly dangerous for plaintiff to attempt to pass into the baggage-car while the train was in motion. The authorities relied on by appellant only establish that it is not negligence per se to perform, at the request of the defendant, an act that is dangerous unless the danger is apparent. The principle holds where there is nothing to show that the act is in itself dangerous. Neither the advice nor direction of the conductor will justify the performance of an act obviously dangerous. 2 Woods' Ry. Law, 1152.

The plaintiff swore that he knew of the danger. There was therefore no question for the jury to pass upon. See also Patterson, Ry. Ac. L., § 275.

OPINION

WOODS, J.

If the plaintiff'S evidence, taken alone, would not have upheld a verdict in his favor, then the peremptory instruction for the defendant was correct; otherwise, it was not.

The evidence of the plaintiff was to this effect: That he had been admonished by the conductor of the train on which he was being transported as a passenger, after the engineer had given the customary signal of the approach of the train to the station to which plaintiff was to be carried, and at which he desired to disembark, that he, the plaintiff, must hurry off, as the train did not have time to stop at the station then near at hand; that the train was running three or four miles an hour; that plaintiff, as directed by the conductor, attempted to pass from the car in which he was sitting to the baggage-car to get his mason's tools, preparatory to getting off, as ordered by that servant of the company; and that, in so doing, without fault on his part, he received the injuries complained of.

We are of opinion that this state of facts did not disclose negligence per se in the plaintiff. On the evidence of the plaintiff alone, the case was one peculiarly for the consideration of the jury; and whether, on all the evidence, the plaintiff was shown to have been guilty of contributory negligence should have been passed upon by the jury.

One may avoid the charge of contributory...