Jackson Elec. Ry., Light & Power Co. v. Lowry

• Decision Date: 28 October 1901
• Citation: 30 So. 634,79 Miss. 431
• Parties: JACKSON ELECTRIC RAILWAY, LIGHT & POWER COMPANY v. ROBERT LOWRY
• Court: Mississippi Supreme Court

30 So. 634

79 Miss. 431

JACKSON ELECTRIC RAILWAY, LIGHT & POWER COMPANY v. ROBERT LOWRY

Supreme Court of Mississippi

October 28, 1901

FROM the circuit court of first district, Hinds county. HON ROBERT POWELL, Judge.

The appellee, Robert Lowry, was plaintiff, and the electric railway, etc., company defendant in the court below. On or about March 15, 1901, the plaintiff, Robert Lowry, a citizen of Jackson, having just returned from a trip, went to the crossing at the intersection of Yazoo and State streets, in said city, for the purpose of taking passage on defendant's car to Fortification street, seven blocks northward. Plaintiff carried a heavy satchel. The night was dark and stormy. At the place in question there was but one pavement or crossing, and that was on the south side of Yazoo street. There was no pavement or crossing on the north side whatever. Plaintiff took his stand near the track on the crossing, and signaled an approaching car, desiring and intending to take passage and to pay his fare. The signal was duly seen by the defendant's servant, but, for some reason, he failed or refused to stop the car at the crossing but ran some twenty or more feet, but not exceeding forty feet, beyond. The railway company had been previously excavating along its tracks, and there then remained much loose dirt piled up along its tracks for some distance, and the then prevailing rains had left the entire street beyond the brick crossing very wet and muddy. It further appeared from the evidence that defendant's street cars had been accustomed to stop at this brick crossing on the south side of Yazoo street to take on passengers, and plaintiff testified that he himself had frequently boarded the cars at this very crossing, there being no crossing of any sort on the north side. After the car passed beyond the crossing, the conductor beckoned the plaintiff to come ahead, and he undertook to do so, but, when he stepped into the street, the mud came over his shoe tops, and he refused to go further but demanded that the car be brought back to the crossing. The conductor refused to do this, but told plaintiff to come around on the other side of the track. Plaintiff then undertook to reach the car in that way, but again stuck in the mud, and had to return to the crossing. Plaintiff again demanded that the conductor back the car, so that he could get on, but the conductor peremptorily refused so to do giving as his excuse that there was a rule or order forbidding the backing of cars. The undisputed testimony for plaintiff showed that it had been the custom of the defendant to back its cars when they had passed the proper crossings. On the return trip of the car, the plaintiff got aboard and demanded the conductor's name, who replied several times in a rude manner. Plaintiff then left the car, and was followed by the laughter, jeers and ribald songs of the conductor until he reached the sidewalk, when the car moved on.

The plaintiff recovered judgment for $ 500, and defendant's motion for new trial having been overruled, this appeal was prosecuted.

Affirmed.

Williamson, Wells & Croom, for appellant.

The plaintiff desired to go north on a street car of defendant, from the intersection of State and Yazoo streets, in the city of Jackson. He stopped on the south side of the crossing and hailed a car which was coming north. The motorman saw him, and stopped the car on the north side of the crossing, according to defendant's rule. The street was muddy, and plaintiff refused to board the car when it stopped, and requested the conductor to back the car to the point where plaintiff was standing. The conductor declined to do so, giving as his reason that it would be a violation of the rules of the company. The plaintiff then again declined to get on board the car, and started off, whereupon the conductor gave the signal to go, and went on up State street, and plaintiff also proceeded up the same street on foot.

The court erred in granting the instructions for the plaintiff. This is not a case which would justify the infliction of punitive damages. And by the giving of the second instruction for plaintiff, the jury were, in effect, told that the mere hailing of a car by a signal, which was seen by defendant's employees, established the relation of passenger and carrier, and that if the car was stopped at a place where plaintiff would be required to go in the mud in order to board the car, and defendant's employees refused to back the car to where plaintiff was standing, that they should find for the plaintiff, and further, that if the conduct of defendant's employees was willful and wanton, that they should inflict punitive damages.

The recent case of Vicksburq R. R. Power & Mfg. Co. v. James R. Marlett, is a decision of this court in point. In that case it is said: "It has been held in this state that punitive damages may be recovered only in cases where the acts complained of are characterized by malice, fraud, oppression or willful wrong, evincing a disregard of the rights of others. There must be some element of one or more of the qualities or properties named, relating to the act made the ground of action, before exemplary damages can be inflicted." It is further said in that case that "a willful wrong that gives a cause of action for the imposition of exemplary damages must be denoted by a wrongful act done with a knowledge of its wrongfulness."

It may be conceded in this case that, under the peculiar circumstances, it was wrong for the conductor to refuse to back the car to where the plaintiff was standing, and if it was, the plaintiff was entitled to recover whatever actual damages he sustained, but he was not entitled to exemplary damages, and the court should have so instructed the jury. It was erroneous to submit to the jury to say whether or not the refusal to back the car was "willful and wanton." If a willful wrong is one done with a knowledge of its wrongfulness, the facts disclosed furnished no basis for the court's second instruction for the plaintiff.

The court erred in granting the fourth instruction for the plaintiff, for the reason that by it the jury were told that in a case where the testimony showed that the sole reason for the conduct of the motorman and conductor was their obedience to a rule of the company, yet, nevertheless, this was not sufficient to show that their conduct was willful or wanton. This instruction, under the facts of the case, was clearly a violation of the principle that a willful and wanton wrong is one...