Hooks v. Alabama & Vicksburg Railway Co.
| Decision Date | 18 November 1895 |
| Citation | 73 Miss. 145,18 So. 925 |
| Parties | W. A. HOOKS v. ALABAMA & VICKSBURG RAILWAY CO |
| Court | Mississippi Supreme Court |
October 1895
FROM the circuit court of Scott county, HON. A. G. MAYERS, Judge.
The declaration avers that the plaintiff was a passenger on one of defendant's east bound trains, having purchased a ticket from Forest to Meridian; that he told the conductor that he desired to get off at "the shops," a place on defendant's line about a mile west of the union depot at Meridian; that the conductor said he could do so, that the train would stop there, and that he would know when the place was reached by the brakeman calling out "shops;" that it was in the night, and dark, and, after the expiration of about the time it would take to run that distance, the brakeman called out, in the coach in which he was riding "Shops! shops!" that the train began to slow up and believing, as he had the right to do, that the train was about to stop at "the shops," he made his way to the door to alight therefrom when it should stop; that as he reached the platform the train did come to a stop, and he supposing, as he had a right to do, that the train was at "the shops," at once alighted from the car in which he was riding; that the train had not reached "the shops," but was a distance of several hundred yards therefrom, the point where he alighted being rough and uneven ground and covered with railway switches; that before he was well upon the ground, the train moved up with force and struck him against the shoulder knocking him to the ground, when his left leg fell across one of the rails, and was run over and crushed by a wheel of the cars in such wise as to necessitate amputation, by reason of which negligence of defendant's servants he was damaged, etc.
The following grounds are assigned in defendant's demurrer to the declaration:
1. The declaration shows that the plaintiff's contract of carriage was for Meridian, and not the "shops."
2. The plaintiff attempted to disembark before he reached the "shops," and before the train had stopped.
3. The plaintiff was the victim of his own misconception of facts, and cannot, because of his ignorance, impose liability on defendant.
4. The call of the brakeman was for the "shops," and plaintiff should have waited until the train stopped at the "shops," or, if he was ignorant, should have made inquiry of the brakeman or others.
5. The presence of the switches, want of lights and absence of any station house should have admonished him that the train was simply waiting for the switch to be thrown in order to reach to the "shops."
The demurrer was sustained; and plaintiff, declining to avail of the leave given to amend, prosecuted this appeal.
Judgment reversed, demurrer overruled and cause remanded.
McIntosh & McIntosh, for the appellant.
As to the first ground of demurrer, it may be answered that, while the plaintiff's ticket was for Meridian, and not the "shops," the contract of carriage, as made by the ticket, was changed by agreement with the conductor to the effect that the plaintiff should be allowed opportunity to get off at the "shops." Whitaker's Smith on Neg., 297; Deering Law of Neg., § 89.
The second ground of demurrer, that the plaintiff attempted to disembark before he reached the "shops," is without merit, in view of the allegations of the declaration. The complaint is not that of one injured while attempting to alight from a moving train.
The third ground of demurrer, that the plaintiff was the victim of his own misconception of facts, and cannot, because of his ignorance, impose liability on defendant, brings up the question of negligence. On the averments of the declaration he was the victim of the negligence of defendant's servants, whereby he was misled to his injury, and the question of negligence so arising should have been determined by the jury. Pierce on Railroads, 311, 313; Pennsylvania Railroad Co. v. Hoagland (Ind.), 3 Am. & Eng. Ry. Cases, 436; Southern Railroad Co. v. Kendrick, 40 Miss. 374; Central Railroad Co. v. VanHorn, 38 N. J. L., 133; Columbus & Indianapolis Railroad Co. v. Farrell, 31 Ind. 408; Baltimore, Pittsburg & Chicago Railroad Co. v. Pixley, 61 Ind. 22; N. J. & G. N. Railroad Co. v. Hurst, 36 Miss. 660; M. & C. Railroad Co. v. Whitfield, 44 Miss. 466; Pennsylvania Railroad Co. v. Hoagland, 78 Ind. 203; Thompson on Carriers of Passengers, 229, et seq.
The fourth and fifth grounds of demurrer are merely argumentative.
W. L. Nugent, for the appellee.
The declaration places the case upon the calling of "shops" by the brakeman, the slowing up of the train, and the belief on the part of appellant that the train had stopped at the "shops," when in fact it had not. Had he been accustomed to railroad travel, he would have known that the call "shops" was intended to give warning to passengers to get ready to disembark, and that when the "shops" were reached in fact, a second announcement would have been made. He was in a hurry to get off, and started to the door, and reached the platform while the train was in motion. The train made a short stop to get in on the switch leading to the "shops," and he believed it had reached the station, though the night was dark, and there was no light anywhere, and nothing was visible but the switches, tracks, and rough, uneven ground. What the appellant believed can cut no figure in the case. The question is, was the appellee in anywise negligent or careless in the discharge of its duties to the traveling public, or to the appellant?
The general rule seems to be this: It is the duty of a railroad company to have the stations announced as the trains approach them, and to stop the cars long enough at the platform to enable passengers to alight in safety. Beyond this the law does not compel the carrier to go. Before reaching the station the movement of the train is wholly left to the discretion of the agents in charge of it, and the fact that it halts short of a station is no reason for a passenger's alighting with his eyes wide open, to discover that the station had not, in fact, been reached. Siner v. Railroad Co., L. R., 3 Exch., 150; L. R., 4 Exch., 117. The appellee had not completed the duty it owed the appellant as a passenger, if any, and had he waited until the "shops" were actually reached, he would readily have ascertained or been apprised of the fact. He would have seen the lights, the grounds, the platform on which to alight, and the agents of the appellee in charge of the station. Nagle v. Railroad Co., 25 P. 1106 (88 Cal. 86).
It will be noted, in this case, that all the physical surroundings should have admonished appellant he was not at the station. The night was dark, there were no lights or platform, the ground was uneven and covered with switches or tracks. If from the announcement of the brakeman he reasonably concluded the train had arrived at the station at which he desired to disembark, and that he was justified in an attempt to get off, such a conclusion could not lawfully be indulged, if the circumstances or indications were such as to show to any person of reasonable prudence and ordinary observation that the train had not reached a platform or proper stopping place. Railroad Co. v. Holmes, 97 Ala. 332 (12 So. 287); Smith v. Railroad Co., 88 Ala. 538; Railroad Co. v. Smith, 92 Ala. 237.
There is a difference between calling a station by a train officer and calling "all out" for the station. The latter may be regarded as a direction to passengers to leave the cars, with a guaranty that it is safe to do so; but the former cannot be regarded as anything more than informing the passengers of the name of the station which the train is approaching, and will stop at. It does not relieve the passengers of all the care that they would otherwise be required to exercise. Gonzales v. New York & Hudson River R. R. Co., 1 J. & S. (N. Y.), 57. See, also, the very pertinent language employed in Mitchell v. Railroad, 16 N.W. 389 (51 Mich. 236), and the cases there cited.
The appellee had done nothing out of the usual course of business; indeed, had done what a proper regard for passengers requires. It had informed them the train would stop at the "shops," and warned them to get ready. When the train did reach the "shops," the call would have been repeated with emphasis: "All out for 'shops!'" The difficulty is, the appellant was not accustomed to railroad travel, and failed to wait. He arose from his seat while the car was in motion, which he should not have done, and the resulting injury is his own fault. It was negligence for him to attempt to get off unless sure, from all the circumstances, that the stop was permanent for the purpose of discharging passengers. Dunn v. Railroad Co., 20 Phila., 258.
Argued orally by W. L. Nugent, for the appellee.
The principle, with its limitations, which must control this case is well put by Clopton, J., in Smith v. Ga. Pa R. R. Co., 88 Ala. 538, 7 So. 119, where the court say: ...
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