Dorrah v. Illinois Cent. Railroad Co.

• Decision Date: 24 October 1887
• Citation: 65 Miss. 14,3 So. 36
• Court: Mississippi Supreme Court
• Parties: W. G. DORRAH v. ILLINOIS CENTRAL RAILROAD COMPANY

3 So. 36

65 Miss. 14

W. G. DORRAH v. ILLINOIS CENTRAL RAILROAD COMPANY

Supreme Court of Mississippi

October 24, 1887

APPEAL from the Circuit Court of Madison County, HON. T. J. WHARTON Judge.

This is an action by W. G. Dorrah against the Illinois Central Railroad Company to recover damages for an alleged failure to stop its train so as to permit plaintiff to get off. The evidence for the plaintiff on the trial tended to show that he bought a ticket at Jackson for Madison Station; that he boarded the train at Jackson; that the conductor came around soon afterwards, took up the ticket, and remarked, as he did so, "Madison Station;" that as the train approached Madison Station, no whistle or bell was sounded, nor was the name of the station called out; that the train barely slacked its pace, and did not stop; and that this was about two o'clock at night; that he had no opportunity to get off and that he was carried to Canton, about twenty miles beyond where he remained until next morning, when he returned on an accommodation train, paying his fare, thirty-five cents; that he was unable to work the following day, and that his services were worth $ 2.00 per day.

The plaintiff's counsel, in his examination of the plaintiff asked him the following questions:

1. "What was the condition of your family that night?"

2. "Do you claim in making up your assessment of damages in this suit that the failure to be put off at your station, and the remaining over at Canton all night away from your family caused you great mental anxiety?" Neither of which would the court permit the witness to answer.

The defendant offered no evidence.

The court instructed the jury that they could not, in this case, give punitive damages, but must confine their verdict to actual damages. The jury found for the plaintiff, and assessed his damages at $ 2.35. The plaintiff appealed.

Affirmed.

G. W. Thomas, for the appellant.

The court excluded by its ruling the condition of plaintiff's family, and his own mental anxiety consequent upon the forced separation from them upon that night.

We contend that this was error, for if the jury believed that the conductor had maliciously, wilfully, capriciously, or by gross negligence passed the station and failed to stop, then the question of mental anxiety should have been considered by them in making up their estimate of the amount of damages to assess. If they did not believe that it was done through gross negligence or desire to wilfully pass the station; yet we contend that the question of mental anxiety was a part of the actual damages in the case. See Sutherland on Damages, Vol. 1, pp. 70, 734 and 735; Vol. 3, p. 259.

William Buchanan, on the same side.

The court below erred in instructing the jury that plaintiff was entitled to only actual damages. The evidence tended to show willful, wanton, and reckless conduct on the part of the officers or servants of the railroad company--a total disregard of the rights of the plaintiff, and the amount of damages was a question for the jury.

Redfield on Carriers, § 365, N. 16.

The plaintiff's ticket was taken up by the conductor between Jackson and Madison. He knew that he had passengers for Madison Station, and yet the whistle is not blown, the bell is not rung, the station is not announced, and the train is not stopped so as to allow the passenger to alight in safety, but is only slacked up. The conductor does not appear in the car again to see if the passenger for Madison Station had alighted, thus showing an utter indifference to the rights of the plaintiff. This was "negligence so gross as to evince a reckless disregard of consequences. " The plaintiff was given the alternative of jumping from the moving train, when it slacked up, or to remain on the train until it reached Canton. This having been shown by plaintiff, the burden was cast upon the defendant, to explain the cause of this conduct, and to exculpate itself.

2 Wait's Actions and Defenses, 90 and 92.

In the absence of any testimony for the defendant, and in view of the testimony for plaintiff, we think it was error for the court to instruct the jury that there was no proof of willful wrong, and that plaintiff was not entitled to recover more than the actual pecuniary loss sustained by him.

"Where there is any evidence, however slight, tending to support a material issue, the case must go to the jury."

Thompson on Charging the Jury, pp. 36 and 43.

Redfield on Carriers and Bailees, § 366.

Chicago R. R. Co. v. Scurr, 59 Miss. 456.

Wilson v. N. O. & N. E. R. R. Co., 63 Miss. 352.

V. &amp M. R....