Louisville & N. R. Co. v. Compiretto

• Decision Date: 16 February 1925
• Docket Number: 24640
• Citation: 137 Miss. 766,102 So. 837
• Parties: LOUISVILLE & N. R. CO. v. COMPIRETTO. [*]
• Court: Mississippi Supreme Court

102 So. 837

137 Miss. 766

LOUISVILLE & N. R. CO. v. COMPIRETTO. ^[*]

No. 24640

Supreme Court of Mississippi

February 16, 1925

Division A

(Division A )

1 CARRIERS. Carrier of passengers is not insurer of their safety; carrier of passenger only liable for injuries caused by negligence in failing to exercise high degree of care.

While a carrier of passengers is required to exercise the highest degree of care and diligence for the safety of its passengers, it is not an insurer of their safety, and is only liable for injuries to passengers which are caused by its negligence in failing to exercise the high degree of care required.

2 CARRIERS. Instructing that by sale of ticket carrier contracted to safely transport passenger and furnish safe means of alighting from train, is error.

In a suit against a carrier for injuries sustained by a passenger in alighting from its train, it is error to instruct the jury that, by the sale of the ticket, the carrier contracted to safely transport the passenger to her destination and to furnish her a safe means of alighting from the train, since it only contracted to exercise the highest degree of care and diligence in this regard.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Hancock county, HON. D. M. GRAHAM Judge.

Action by Mrs. Jennie Compiretto against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Smiths, Young, Leigh & Johnston, for appellants.

It has been universally held that a carrier of passengers is not an absolute insurer of the safety of its passenger, as a carrier of goods is for the safety of the goods, but that the carrier of passengers is only liable for injuries caused by negligence in failing to exercise the proper degree of care, skill, and prudence for such passengers' safety. 10 C. J. 863 and 911; 4 R. C. L. 1137 and 1142; 5 Elliott on Railroads (3 Ed.), sec. 2935, p. 39; Y. & M. V. R. R. Co. v. Tillman, 61 So. 658, 104 Miss. 592.

The court erred in giving the one written charge as to liability requested by the plaintiff. Even if the declaration stated a cause of action ex delicto, this charge is erroneous, because negligence is not made the basis of liability. It deals solely with what the plaintiff claimed to be the contractual obligation of the defendant, and excluded from the consideration of the jury all consideration of the question of negligence. The word "negligence" is not mentioned, either in the declaration or in the charge, nor is there anything in the charge to point out to the jury what would constitute negligence. The charge tells the jury that the defendant owed an absolute duty to carry the plaintiff safely to her destination, and to furnish a safe means of alighting.

Section 1645, Hemingway's Code and section 1985 of the Code of Mississippi, are not applicable to this case, because the alleged accident was in Louisiana. It has been held that section 1645 is not merely procedural, but goes to the substantive rights of the parties, and, therefore, does not apply to actions which are not governed by the Mississippi Laws. N. O. & N.E. R. R. Co. v. Harris, Adm'x of Harris, 247 U.S. 367; N. O. & N.E. R. R. Co. v. Scarlet, 120 Miss. 665, 83 So. 1. It is always presumed where a matter is governed by the law of another state, that the general common law applies in that state unless otherwise proved. Therefore, it will be assumed that the burden was on the plaintiff to prove negligence on the part of the defendant, if there was any. Nevertheless, this charge clearly omits any consideration of negligence.

The doctrine of res ipsa loquitur has been applied by many courts to cases where a person is injured from causes which would in the ordinary course of events arise by reason of negligence on the part of the defendant. We do not think that it would apply in this case for the reason that the hole in the step might have been made immediately before the plaintiff attempted to alight, without any knowledge on the part of the defendant or any of its servants, or without any opportunity on their part to discover and remedy the defect in time, and to have prevented the plaintiff from falling. However, this is not material in considering this matter, because the doctrine of res ipsa loquitur is applied simply as a mode of proving negligence, and does not relieve the jury of the duty of deciding the question of negligence vel non. 5 R. C. L., sec. 719, p. 85; Pascell v. North Jersey St. Ry. Co., 69 A. 171, 75 N. J. L. 836; Cochrell v. Langley Mfg. Co., 63 S.E. 244, 247, 5 Ga.App. 317; St. L., S. F. & T. Ry. Co. v. Cason, 129 S.W. 394, 397; Lynch v. Ninemire Packing Co., 115 P. 838, 840, 603 Wash. 423; Lyles v. Brannon Carbonating Co., 52 S.E. 233, 140 N.C. 25; Houston E. & W. T. Ry. Co., v. Roach, 114 S.W. 418, 422, 423, 52 Tex.App. 95.

The flagman, F. L. Reasonover, who was standing at the foot of the step where the plaintiff fell, positively testified that there was no hole or defect in the step, and states that her heel caught on the corner of the step when she slipped down. There was direct dispute in the evidence as to whether or not there was a hole or defect in the step. So when the charge assumed that there was a hole or defect in the step, it was clearly erroneous and prejudicial to the defendant. Jackson Light & T. Co. v. Taylor, 72 So. 856, 112 Miss. 60.

We respectfully submit that the judgment of the lower court should be reversed, and that a judgment should be rendered for the defendant.

Gex & Waller, for appellee.

It is certainly too well established to waste the court's time with argument thereon, that liability will follow for the breach of any duty or contract. In the instant case, the contract was set out, and proved. The plaintiff was injured through a breach of the defendant's contract, and liability followed. 4 R. C. L., sec. 538, p. 1008; 10 C. J., sec. 1263, p. 821; Sec. 1341, p. 916.

In St. Louis Ry. Co. of Texas v. Gresham, 167 S.W. 724, the supreme court of Texas held that the defendant company was liable not only for defective step, but was liable to a plaintiff who stepped on a wet and frozen step, which had become in that condition during the transportation of the passenger, holding that it was not only its duty--(the defendant's duty) -- to furnish a safe step and one free of defect, but to keep the step clean at all times so that passengers might alight. Cases of this...