Illinois Central Railroad Co. v. Small

• Decision Date: 02 April 1917
• Citation: 74 So. 681,113 Miss. 857
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. SMALL

74 So. 681

113 Miss. 857

ILLINOIS CENTRAL RAILROAD COMPANY v. SMALL

Supreme Court of Mississippi

April 2, 1917

March 1917

Division B

APPEAL from the circuit court of Montgomery county, HON. H. H ROGERS, Judge.

Suit by J. B. Small against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mayes Wells, May & Sanders, for appellant.

Counsel cite cases to the effect that Small was a passenger, and entitled to receive from appellant the care required to be given to a passenger. We do not dispute this. But all that the carrier is required to do is to make reasonable provision for his safety. The higher duty required by text books and decisions applies only to the operation of trains. The highest degree of care to protect a passenger from injury, applies only as to the operation of locomotives, but this degree of care is not required as to premises. Reasonably safe condition of premises is all that is required. Aside from this, it was not because of any failure of any care required of appellant to be exercised towards appellee that produced the injury. The premises were safe. A safe way was provided for him to take passage and he turned his back on this and chose an unsafe way. In other words, his injury is the result of his own recklessness and foolhardy negligence, we say, in an effort to obtain for himself better accommodations than were afforded the other passengers by getting on the train before they had time to get there and be seated.

Counsel for appellee further argue that it was the duty of the railroad company to make the passageway to and from the station safe. We agree to this but we contend that the facts in this case show that we had made it safe; that the reason why this party was injured was because he left the safe way and made a mad rush to be the first on the train. Of course, it is the duty of the railroad company to furnish a guide to take passengers to their right train, when a guide is necessary, but in this case no guide was necessary. The facts show that the way was safe and all other passengers acting with prudence took the train in safety.

Counsel say that 2 Hutchinson on Carriers, section 940, holding the carrier is required only to exercise reasonable care, has no application to our state. We contend that the counsel has not found, nor will he find, any decision of this state which holds that the carrier owes any other duty to the passengers with reference to its premises, except to keep its premises in reasonably safe condition and to exercise reasonable care for the safety of the passengers. Where the injury to the passenger occurs from the operation of a train, the carrier owes the duty of the highest degree of care to the passenger to protect him from this, but the rule laid down by Hutchinson that only reasonable care is required is just as applicable to the state of Mississippi as it is in any other state in the United States, and there is no decision to the contrary. The duty placed on the carrier in regard to its premises is the same duty that rests on every individual or corporation having business with the public and inviting it on its premises. The duty the carrier owes is no greater and no less than that of other corporations engaged in public business. The premises must be kept reasonably safe.

Counsel assert that we contend with great earnestness that it appears from this record that the cause for plaintiff's injury was his own contributory negligence and that the trial court should have so instructed the jury as a matter of law, and given a peremptory instruction for the defendant. We deny that there is to be found in our brief any suggestion that we charge Mr. Small with contributory negligence. Contributory negligence carries with it the idea that someone else has been guilty of a precedent negligence and that the injured party shared, or participated in the act of negligence committed by some other party. Our contention is that the railroad company was guilty of no negligence. All the foolhardiness and negligence was his. We had our premises in a safe condition; and walks provided for the passengers to go to and from the trains; had lights; and he was preceded by twenty or thirty passengers going to the train in a proper direction, and he left the beaten way and undertook to take a route that no other passenger should take, and injured himself.

Hill & Witty, for appellee.

Plaintiff was a passenger (52 So. 355) and as such was entitled to receive from appellant the highest degree of care to protect him from injury, (60 So. 73; 55 So. 593; 50 So. 721).

Appellant owed plaintiff the duty to use the utmost care to make the passageway to and from the train and the station safe, and to furnish guides to conduct the plaintiff to his train if the plaintiff would not otherwise have been safe, or to guide and direct plaintiff to his train and inform him, as to the safest way to board same, in some other competent way (44 Am. Reports 444; 121 N.W. 676; 1 L. R. A. 157; 81 S.W. 1069, 182...