Illinois Cent. R. Co. v. Minor

• Decision Date: 23 May 1892
• Citation: 11 So. 101,69 Miss. 710
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. A. F. MINOR

11 So. 101

69 Miss. 710

ILLINOIS CENTRAL RAILROAD COMPANY v. A. F. MINOR

Supreme Court of Mississippi

May 23, 1892

FROM the circuit court of the first district of Panola county HON. JAMES T. FANT, Judge.

The appellee, A. F. Minor, brought this action to recover of the Illinois Central Railroad Company damages for personal injuries suffered by him while a passenger. The injury was caused by a pistol, carelessly or wantonly discharged by a fellow-passenger in the same car with plaintiff. The occurrence took place upon an excursion train, which was being run by the defendant from the town of Sardis, Miss. to Memphis; Tenn. The excursionists were mostly negroes; and after a day spent in Memphis, the train was returned at night to Sardis. Many of the passengers were intoxicated and became extremely disorderly, until the coaches became the scenes of the wildest carousing. Many of the passengers were not only disorderly but turbulent, and pistols were freely discharged to the great peril of all persons who were near. There is testimony tending to show that the conductor not only neglected all efforts to suppress the rioting, but, when appealed to, replied, "that he did not give a damn what they did, so that he got his fares." There is much conflict in the testimony as to the conduct of persons on the train and the course pursued by the conductor, but, for the purpose of this appeal, the verdict of the jury must be considered as having settled all conflicts in the testimony favorably to the plaintiff's case.

The disorderly and turbulent conduct continued until the train reached Love Station, when plaintiff, a white man, who was behaving himself peaceably and quietly, was wounded by a pistol-shot at the hands of some unknown, disorderly passenger. He was seriously and permanently injured, and brought this suit, alleging that the servants of the defendant in charge of the train negligently failed in their duty to preserve order and protect him from injury. The suit was brought to the May term, 1889. The first trial resulted in a verdict for plaintiff for $ 10,000, which was set aside on motion of defendant, because the court deemed it excessive to the amount of $ 5,000, and the plaintiff refused to enter a remittitur. A second trial was had upon substantially the same evidence, resulting in a verdict for the plaintiff for $ 8,562. Defendant again moved for a new trial, on the ground among others, of excessive damages, and the court again set the verdict aside, because the plaintiff refused to remit to $ 5,000. The plaintiff reserved general bills of exceptions to the granting of these new trials.

At the May term, 1891, there was a third trial. By agreement, the case was presented to the jury on the evidence contained in the two previous bills of exceptions, no witnesses being put upon the stand. The defendant asked a peremptory instruction which was refused and exception taken. Exception was also taken to the action of the court in granting instructions for the plaintiff. The special bills of exceptions taken, embodied all the testimony in the case. This third trial resulted in a verdict for plaintiff for $ 15,000. No motion was made to set aside this verdict, but defendant appeals on the special bills of exceptions above mentioned, taken during the progress of the case.

Among other instructions granted for the plaintiff, were the following:

"1. Railroad companies are bound to exercise very great vigilance and care in maintaining order and guarding passengers against violence from whatever source arising, which might reasonably be anticipated or naturally expected to occur in view of all the circumstances and the number and character of the persons on board. In case of angry or threatening language, the conductor, without waiting for an overt act of violence, should use all means within his control to prevent violence, and may, if necessary to this end, lawfully eject from his train those threatening the disturbance. In case of violent, disorderly or riotous conduct in his cars, it is the duty of the conductor to make all reasonable efforts within his power to quell the disturbance, and bring about peace and quiet; and, to accomplish these ends, the law clothes the conductor of a train with the rights, and exacts of him the duties, of a peace-office. He has the right, and it is his duty, to use all the force necessary, as far as within his power, to prevent violence or riotous conduct, or to quell such conduct after it has commenced. He should stop his cars, and call to his assistance all the train-hands, and such passengers as are willing to assist him, should this be necessary to establish peace and order on his train. Any failure on the part of the conductor to discharge his duty in suppressing, or making all reasonable efforts to suppress, disorder and violence of which he knows, or has reasonable opportunity to know, or could ascertain by reasonable vigilance on his train, is negligence.

"2. If the jury believe from the evidence, that on the occasion in question there was violent and disorderly conduct on defendant's train, by which injury to plaintiff and other passengers was threatened, and of this the conductor had knowledge, or would have had knowledge had he been discharging his duty as conductor, and that he was negligent in the discharge of his duty in suppressing or attempting to suppress the same, in that he did not do what he could have done and reasonably ought to have done in affording the passengers protection; and that, had he discharged his duty, and promptly intervened in such trouble, order might have been restored, or violence and disorder in some measure lessened or mitigated, and the consequence thereof averted; and that, in this violence and disorder, and in a shooting arising upon such train, plaintiff, being a passenger on defendant's train, and not participating in said disorderly conduct, or said shooting, received a serious wound, then defendant is liable to plaintiff in compensatory damages.

"3. If the jury believe from the evidence, that plaintiff is entitled to recover, then they Should award him such damages, according, to the evidence, as shall compensate him for the injuries sustained, if such be in evidence, and, in estimating his damages, they may take into consideration such loss of time, bodily pain, injury to person, expenses of cure, and mental suffering, as the evidence may disclose was caused by the injury. Also, if in evidence, future damages for loss of health, time, bodily pain and suffering, which the evidence renders it reasonably certain must necessarily flow from the injury, if the evidence discloses that actual injury to the person of plaintiff has been sustained; and in estimating such damages the jury is the judge of the amount to be assessed, and should be governed by the evidence disclosing the circumstances of the case; and it is not necessary that any witness should have testified as to the amount of damages in dollars and cents resulting from bodily pain, mental suffering and loss of health that plaintiff sustained by reason of the injury."

Judgment reversed and cause remanded.

Mayes & Harris, for appellant,

Filed a brief reviewing the opinion of the court in Railroad Co. v. Burke, 53 Miss. contending that the rule there announced is unsound, and asking the court to overrule that case, and, as to the other questions involved, making the following points:

Plaintiff voluntarily placed himself in a situation of exceptional danger. In this, the case at bar differs from the Burke case. Moreover, Minor did not claim the protection of the company. He must be assumed to consent to the disorder. Volenti non fit injuria. 3 Am. & Eng. Eric. L., 664.

The third instruction is erroneous in informing the jury that it should judge of the amount of the damages to be assessed, and should be governed by the evidence. It should have added the qualification that, under the peculiar attitude of this case, the verdict could not exceed the sum of $ 5,000. Two verdicts--one for $ 10,000 and the other for $ 8,000--had been set aside, because in excess of $ 5,000, the sum deemed by the court to be adequate. The court had twice adjudged that such a limit was proper. It should not have allowed the jury to disregard that decision; and bring in a larger verdict on the same testimony. We find no authorities directly in point, but see Steinbuchel v. Wright, 43 Kan. 307, and Baker v. Madison, 62 Wis. 137. In any event, the Court should have limited the jury to an amount not materially in excess of the former verdict.

The first and third instructions for the plaintiff conflicted with those given for the defendant. The first instruction announced that plaintiff must recover, if there was a general disorder which the conductor negligently failed to suppress, whether any demonstration was made against him specifically or not.

Instructions must not be contradictory. Railroad Co. v. Miller, 40 Miss. 45; Railroad Co. v. Kendrick, 40 Ib., 374; Herndon v. Henderson, 41 Ib.; 584; Cunningham v. State, 56 Ib., 268.

Shands & Johnson, for appellee.

Unless the court has made mistakes against the defendant in the instructions, the judgment must be affirmed. Code 1880, § 1719; Parham v. Stith, 61 Miss. 199; Tagert v. Baker, 57 Ib., 303; Bowers v. Ross, 55 Ib., 213.

This court will not reverse because of the refusal to grant the peremptory instruction. This is never done unless all the facts in evidence, taken as true, and every just inference from them, fails to maintain the issue. If there is room for doubt, the instruction should not be given. There is no error in the instructions for the plaintiff. On this point see Railroad Co. v. Burke, 53 Miss. 200; Railroad Co. v Hinds, 53 Pa. 512; 76 Ib., 510...