Fore v. Alabama & Vicksburg Railway Company

• Decision Date: 11 December 1905
• Citation: 87 Miss. 211,39 So. 493
• Parties: LUTHER FORE v. ALABAMA & VICKSBURG RAILWAY COMPANY
• Court: Mississippi Supreme Court

39 So. 493

87 Miss. 211

LUTHER FORE v. ALABAMA & VICKSBURG RAILWAY COMPANY

Supreme Court of Mississippi

December 11, 1905

November 1905

FROM the circuit court of Scott county, HON. JOHN R. ENOCHS Judge.

Fore the appellant, was plaintiff in the court below; the railway company, the appellee, was defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

According to the testimony offered by the appellant, he was, on June 27, 1902, employed as a driver by Brown Bros., who had a contract to do some grading for the railway company, and on that day he boarded the local freight train of the appellee to go from Forest to Jackson. By direction of his foreman plaintiff, with another member of his gang, Gaston, got into the car in which the mules, scrapers, tools, and feedstuff were being transported. They were discovered in this car by a brakeman, who ordered them to get out, and upon their refusal, called the conductor, who came to the car and repeated the order. Fore testified that he told the conductor that the foreman had his transportation in the caboose, to which the conductor replied that he could not ride in that car, with or without transportation, and to get off and catch the caboose, at the same time signaling the engineer to slow up; that the train slowed up, but did not stop, the conductor ordering him to get off then, as the train was going as slow as it would ever go; that he and his companion got out of the car onto a flat car and swung off to the ground while the train was going "a little faster than a man could walk;" that he was only eighteen years old, a country boy, and had never gotten on or off a moving train before that in getting off he fell and injured his foot. Gaston testified that he did not see Fore fall as he got off, but he did fall as he tried to catch the caboose; that he saw him get up and walk down the track after the train had passed. The defendant pleaded, among other things, that plaintiff was guilty of contributory negligence in getting off the train while in motion and in attempting to catch the caboose as it passed him. According to the testimony of the conductor, when he ordered appellant and his companion out of the car he signaled the engineer to stop. Thereupon appellant said: "You need not stop; we can get off." The train did stop, however, but not until after the boys had gotten off. He did not tell them to catch the caboose as it passed, but only ordered them to get off that car; they could not ride there, with or without transportation; he did not see appellant get off or see him fall, but he did see him, after he got off, standing on the ground, and he did not appear to be injured. He also testified that he afterwards found the foreman and Gaston in the caboose, but that appellant was not there; that they were without proper transportation, but when they informed him that they were in charge of the stock he permitted them to go as far as Morton, where he wired the superintendent for instructions and received a reply directing him to put them off unless they had proper transportation, and he then caused them to leave the train.

Reversed and remanded.

Green & Green, and S. L. McLaurin, for appellant.

Under well-settled rules, a peremptory instruction having been given for the defendant, appellant is entitled to have taken as true the matters shown by the evidence and reasonable deductions therefrom favorable to himself. At the time of the injury appellant was eighteen years of age, and unacquainted with the dangers incident to jumping on or off railroad trains.

At the time of the ejection the train was moving faster than a man could walk, and by the manner of the ejection plaintiff was injured. Appellant had a right to be where he was, and his ejection was wrongful under any circumstances, and he had a right to recover. 5 Am. & Eng. Ency. Law, 513; Boggess v. Chesapeake, etc., R. Co., 37 W.Va. 297; Boehm v. Duluth, etc., R. Co., 91 Wis. 592.

This case is covered by Thompson v. R. R. Co., 72 Miss. (1895), 715 (S.C., 17 So. 229), wherein even as to a trespasser--not one lawfully on the train, as here--the learned counsel of the railroad company admitted in their brief: "If the conductor had ordered the boy off, under such circumstances that injury would naturally and necessarily result, then the injury would have been willful."

In Kline v. R. R. Co., 37 Cal. (1869), 404, it is said: "He must, then, have undertaken to get off because he was told that he could not ride, and was ordered to do so by the conductor, with a show of force, or must have been with actual force pushed off by the conductor. Upon either hypothesis, we think, the plaintiff should not have been nonsuited."

"Where a boy of ten years of age was upon the platform of a street or horse car, under circumstances very similar to those of the present case, and was ordered to get off by the driver, without stopping the car, and did so and fell, and was run over by the car, the court said: 'If the plaintiff had been a person of mature age, the mere words of the driver could not have been regarded as equivalent to a forcible ejection of the plaintiff from the car, at a time when it was dangerous to leave it; for such a person might have exercised his own judgment as to the peril he might incur in attempting to obey the order. But the plaintiff was a child of about ten years. His obedience could be naturally expected, without regard to the risk he might incur; and in respect to a child, so giving the command would be equivalent to compulsion.' Lovett v. South Salem & South Danvers Railroad Co., 9 Allen, 561." If this be sound doctrine, and we see no reason to doubt, can there be any period in childhood of which it can be said by the court, judicially or as a matter of law, that the judgment is so far matured as to enable a child to so far withstand the positive and menacing command of one in authority as to cast, in whole or in part, the responsibility of obedience upon the child, if his obedience results in personal injury to himself? Brown v. R. R. Co., 66 Mo. 595; Ry. v. Kirkbridge, 79 Tex. 495; Railroad Co. v. Mitchell, 56 Kan. 35; Railroad v. Kelly, 36 Kan. 655, 657, 658; Kreeger v. Ry. Co., 84 Mo. App., 365; Railway v. Mitchell, 56 Kan. 324; Enright v. Railroad Co., 98 Pa. 169; Hocketh v. Railroad Co., 67 N. E. (Ind.), 108; Railroad v. Eskew, 86 Ga. 643.

But appellee may contend that appellant was guilty of contributory negligence in doing that which the conductor ordered him to do, but the replies are obvious: (1) That the court cannot say such was the case. Nor. Pac. R. Co. v. Edgland, 163 Mo. 98, 99. (2) There was a compulsion upon the part of the appellant to do that which the appellee ordered, and whether it was so must be passed upon by the jury. (3) There was no knowledge on the part of the appellant of the danger incident to doing that which the appellee ordered him to do; and, the scienter being absent, contributory negligence is not predicable of his act. 7 Am. & Eng. Ency. Law (2d ed.), 391, 392; Beach on Contributory Negligence, sec. 36.

McWillie & Thompson, for appellee.

There can be no doubt that the appellee's conductor, at the time the appellant undertook to get off the flat car, was still engaged in slowing up the train. This fact appears from the testimony of the appellant himself, and is wholly inconsistent with the idea that the conductor compelled the appellant to alight when he did. The conductor owed the appellant no duty except to refrain from willfully or wantonly injuring him, and how can it be said that he was guilty of that when he employed no coercion of any kind, no force against the body of appellant nor any threat to constrain his will, and when he was still engaged in reducing the speed of the train?

It was not pretended that the efforts of the conductor...