Illinois Cent. R. Co. v. Massey

• Decision Date: 24 October 1910
• Docket Number: 14,577
• Citation: 53 So. 385,97 Miss. 794
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. FREDERICK T. MASSEY

53 So. 385

97 Miss. 794

ILLINOIS CENTRAL RAILROAD CO. v. FREDERICK T. MASSEY

No. 14,577

Supreme Court of Mississippi

October 24, 1910

FROM the circuit court of Tate county, HON. WILLIAM A. ROANE Judge.

Massey appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in favor of plaintiff the defendant appealed to the supreme court. The opinion of the court states the facts of the case.

Judgment reversed and cause remanded.

Mayes &amp Longstreet, for appellant.

In the light of the testimony, construing it most favorably for appellee, a peremptory instruction should have been given for appellant. Appellee's own testimony shows conclusively that he was guilty of negligence, and that this negligence not only contributed to his injuries, but was the direct cause. Appellee does not even deny having admitted, as testified to by witness for appellant, that his injury was caused by his own mistake and by his own carelessness and foolishness.

It is not claimed by appellee that the accident was caused by failure of the train to stop at Coldwater, or by its failure to stop for a sufficient time, or by any unusual jerking or jolting. It is not even claimed that appellee was thrown off. The train had not even reached the depot at Coldwater. Appellee admits that he simply walked from his seat to the platform and from the platform down the steps to the ground without making an attempt to notice whether the train had stopped or not. He did not look out for the depot which he could have seen beyond him by the lights; did not look at the ground beneath him; did not pay any attention to whether the train had stopped or not; and did not give any attention to the running of the train.

It is to be borne in mind in connection with this testimony that he was familiar with the topography there, and if appellee had exercised the simple precaution of looking he would have discovered that he was opposite the cotton platform and was some distance from the depot. But no, without even stopping without using any of his faculties, without taking the slightest precaution for his safety, he walked off a moving train which had not even reached the depot, as he could have easily ascertained by not merely the slightest precaution, but by simple observation.

The testimony of appellee fully justifies his own confession to others that his accident was due to his own carelessness and foolishness, and is sufficient to fully exonerate the railroad company.

The only negligence alleged against the appellant railroad company is that of the flagman, in calling "All out for Coldwater" before the train stopped. The question as to whether or not this constitutes negligence on the part of the railroad company is ably discussed in the case of Mearns v. Central Railway Co., 139 F. 543. And see England v. B. & M. Railroad Co., 153 Mass. 490, 27 N.E. 1; Brown v. N. Y., etc., R. Co., 63 N.E. 941; Holyman v. Kanawha, etc., R. Co., 64 S.E. 536; McDonald v. Boston, etc., R. Co., 2 Am. & Eng. Railway Cases, U. S. 293; Shannon v. Boston, etc., R. Co., 2 A. 678; Garrett v. Manchester, etc., R. Co., 16 Gray, 501; Chicago, etc., R. Co. v. Londoner, 58 N.W. 434, 70 N.E. 1006; Pittsburg R. Co. v. Miller, 33 Ind.App. 128.

This court has held in the case of Alabama, etc., R'y Co. v. Jones, 86 Miss. 276, 38 So. 545, that a passenger is guilty of contributory negligence as a matter of law, who sustains injuries caused, by his own contributory negligence.

In the present case appellee admitted to others his own mistake and carelessness and all the testimony clearly shows that it was this mistake and carelessness which was the direct cause of the injury.

J. W. Lauderdale, for appellee.

The case was very properly submitted to the jury, and their verdict and the judgment of the court below, will not be disturbed by this court. This court has repeatedly held that cases are rare in which the question of negligence should be taken from the jury and decided by the trial court. Bell v. Railway Co., 87 Miss. 234; King v. Railway Co., 87 Miss. 270; Mercantile Co. v. Railway Co., 87 Miss. 675; Allen v. Railway Co., 88 Miss. 25; Railway Co. v. Bethea, 88 Miss. 119; Railway Co. v. Hardy, 88 Miss. 732; Stevens v. Railway Co., 81 Miss. 195; Illinois Central, etc., R. Co. v. Daniels, 50 So. 721; Baltimore, etc., R. Co. v. Mullen, 2 L. R. A. (N. S.) 115.

Contributory negligence is an affirmative defense and the burden of proof thereof rests on the defendant. Railway Co. v. Hardy, 88 Miss. 732.

It is only where no fact is left in doubt, and no deduction or inference other than negligence can be drawn by the jury from the evidence, that the court can say as a matter of law, that contributory negligence is established; and, even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question, it is one for the jury. Johnson v. Southern, etc., R. Co., 97 P. 521; Worth v. Kallas, 162 F. 306; Hilgar v. Walla Walla, 97 P. 498; Chicago, etc., R. Co. v. Byrum, 38 N.E. 578; Union, etc., R. Co. v. Porter, 56 N.W. 808; Terre Haute, etc., R. Co. v. Buck, 49 Am. Rep. 168.

The carrier must exercise the highest degree of care to secure the safety of its passengers, and is responsible for the slightest neglect, if any injury is caused thereby. A carrier's duty is not ended with carrying a passenger safely from one point to another, but the carrier must set the passenger down safely, if in the exercise of the utmost care, it can be done, and the question as to whether or not a passenger in alighting from a train of railroad cars in obedience to the direction or command of a conductor or brakeman thereon, is guilty of contributory negligence, depends upon the particular circumstances of each case. Evansville, etc., R. Co. v. Althon, 51 Am. St. Rep. 303; Illinois, etc., R. Co. v. Daniels, 50 So. 721.

The announcement of the flagman, "All out for Coldwater," under the circumstances, amounted to not only an invitation to appellee to alight from said train, but it amounted to a command. Appellee had heard the engineer blow the whistle for the station. The station had been announced, and after waiting the usual time for the train to reach the station, the flagman threw open the door, took up his lantern, and made the announcement, "All out for Coldwater," following the custom done at every station when the train had arrived at the depot and stopped. Illinois, etc., R. Co., v. Daniels, 50 Miss. 721.

Under all the facts shown in evidence and the circumstances surrounding the accident, whether the person injured was guilty of contributory negligence at the time is a question within the province of the jury to decide, and one that the court cannot rightfully take from them. Pennsylvania, etc., R. Co. v. Keane, Admr. 41 Ill.App. 317.

In the case of Warner v. Baltimore, etc., R. Co., 168 U.S. 346, 70 L.Ed. 491, it is said: "The duty owing by a railroad company to a passenger, actually or constructively in its care, is of such a character that the rules of law regulating the conduct of a traveler upon the highway when about to cross and the trespasser who ventures upon the track of a railroad company are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the track of the railroad company was guilty of contributory negligence. A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which is due to mere trespassers or strangers, and it is conversely equally true that the passenger under given condition has a right to rely upon the exercise by a road of care, and the question of whether or not he is negligent under all the circumstances must be determined on due consideration of the obligation of both the company and the passenger." See also Chicago, etc., R. Co. v. Stepp, 164 F. 792, 90 C. C. A. 438; Chattanooga R. R. Co. v. Downs, 106 F. 641, 45 C. C. A. 511; Chesapeake R. R. Co. v. King, 99 F. 251, 40 C. C. A. 432, 49 L. R. A. 102.

There is no denial by appellant company that an invitation was given, but it is contended by appellant that because appellee failed to stop, look and listen, he is not entitled to recover. It is common knowledge among travelers that when the station is announced and the invitation is given to alight from the train, it is the duty of the passenger to at once alight. It is also common knowledge that railroad companies and their employes do not wait for passengers to make investigations after the invitation has been given to alight. Such passengers must either disembark from the train or run the risk of being carried on to the next station.

If there had been nothing more than the calling of the station or the fastening of the door back, perhaps it could not be said that appellee was justified in supposing that he had been invited by the flagman to alight at that place. But when these circumstances are taken into consideration, in connection with the facts that the station had previously been announced and that the usual time had elapsed for the train to reach the depot, that the door was thrown open and fastened back, and the announcement by a man in authority, "All out for Coldwater," was made; and the further fact that it was at night and very dark; and the only object that appellee could see was the south-bound passenger train, which was due to leave upon the arrival of his train pulling from the station of Coldwater, and still the further fact that when appellee walked out on the platform there stood the flagman, knowing that he had announced to the passengers that they were at Coldwater, and not one effort did he make to prevent appellee from making the fatal step,...