Louisville, N.O. & T. Ry. Co. v. Douglass

• Decision Date: 09 May 1892
• Citation: 11 So. 933,69 Miss. 723
• Parties: LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY v. ISAIAH DOUGLASS
• Court: Mississippi Supreme Court

11 So. 933

69 Miss. 723

LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY COMPANY v. ISAIAH DOUGLASS

Supreme Court of Mississippi

May 9, 1892

FROM the circuit court of Tunica county, HON. R. W. WILLIAMSON Judge.

The appellee, Isaiah Douglass, was living in Tunica county, about twenty miles north of Tunica station, on the line of the Louisville, New Orleans & Texas Railway. His son, Charles Douglass, about sixteen years of age, had left home in 1890 and had gone to Tunica. In October of that year, intending to return home, as the testimony tends to show, he boarded appellant's north-bound passenger-train at Tunica, and through ignorance, or for some reason unexplained by the testimony, he went into the express department. This was in a car divided into three compartments--the north end being used by the Southern Express Company, the middle compartment for the United States mails and the south end being used by the railway company to carry the baggage of passengers. There were doors leading from one compartment to another. The boy got in the express compartment just as the train was leaving the station. On discovering his presence, the express-messenger called to the baggage-master, who was in his own compartment, saying: "Come here! I have a damn coon in here, and we will have some fun." The baggage-master immediately went in, and there, seeing the boy, he spoke to him in a threatening manner, as the testimony of plaintiff tended to show, and asked, "What in the hell are you doing in here?" The boy made no reply. The express-messenger began looking around as if hunting for something to strike the boy with. Plaintiff's testimony further tended to show that the baggage-master said, "We are going to give you hell," and that the boy appeared to be greatly frightened by the action and language of the two men, and, as their backs were turned jumped from the car, the train then running at a high rate of speed. In the fall he received injuries from which he died in a short time. In his pocket was found one dollar, which was more than sufficient to pay his fare to the station at which his father lived. On his person was also found a small pistol.

The baggage-master, as a witness for defendant, denied that he made use of the language attributed to him by the colored postal-clerk, witness for plaintiff. He testified that his purpose in going into the express-car was to take the boy to the conductor; that he had no authority to put any one off the train; that his duties were confined to the handling of baggage, and that he merely reported parties to the conductor whom he found riding in the baggage or express-car. The conductor had not seen the boy, and knew nothing of the occurrence until it was reported to him by the baggage-master. The rules of the company in regard to the ejection of parties from trains were introduced, showing that the duty of ejecting persons from the train devolved upon the conductor and brakemen, or other parties acting under the order of the conductor. It was admitted that the boy had no ticket. It was shown that he was fully acquainted with the running of trains, and lived near the railroad.

The testimony tended to show that the plaintiff expended about $ 25 in burial expenses, and that the services of the boy until becoming of age were reasonably worth $ 12.50 per month.

On the trial, at the instance of plaintiff, the court gave the jury the following instructions:

"6. That if they find from the evidence that plaintiff's son was a minor, and that, in October, 1890, said minor boarded the train of defendant at Tunica, Miss. for the purpose of being carried to Lake Cormorant, Miss.; and that, in boarding said train, got into the express department of the car belonging to defendant's train; and that, when he got into the said department of said car, the express-messenger called to the baggage-man of the train to come in there, that he had a 'coon' in there, and they would have some fun, and the baggage-man went to the express department of the car; and then he and the express-messenger wantonly wilfully and recklessly, by their actions and their language, induced said minor to believe and fear that they were going to inflict upon said minor severe corporal punishment, or do him bodily harm and injury; and that, by reason of Such fear, and to escape said Punishment or injury at the hands of said express-messenger and baggage-man, said minor leaped from the car while it was running at a great speed, and sustained injuries from which he shortly died, then the jury will return a verdict in favor of plaintiff, giving him such damages as they may see meet and proper to give, according to the instructions heretofore given by the court in this case as to said damages.

"7. If the jury believe from the evidence the facts in this case to be as set out in the foregoing instruction, then they are instructed to find for the plaintiff, and assess his damages above indicated, even should they further believe, from the evidence, that said minor was a trespasser on said train at the time he leaped therefrom, and had no lawful right thereon.

"8. The court further instructs the jury that, if they find, from the evidence, the facts in this case to be as above set out, then they will return a verdict for the plaintiff, and assess his damages as above indicated, even though they believe further, from the evidence, that the express-messenger was the prime mover and instigator of the action and language which put said minor in such fear as to cause him to leap from said train."

The court refused to give the following instructions, asked at the instance of defendant:

"1. The court instructs the jury to find for the defendant.

"2. The court instructs the jury that the proof shows that the express-messenger was not the servant of the defendant, and the defendant is not liable for this acts. Therefore, if the boy, Charles Douglass, was impelled to jump from the car of the defendant by reason of the language or demonstration of the express-messenger, and not by the act or demonstration of an agent of defendant, the defendant is not liable, and they will find for the defendant.

"4. The court instructs the jury that it appears from the evidence that the baggage-master of defendant had no authority beyond that of safely transferring the baggage, mail, etc., committed to his care; and if he was engaged, in company with the express-messenger, in threatening and terrifying the boy, Charles Douglass, for their own amusement, and not in the performance of any duty to the defendant, then he is liable for the reasonable consequences of his act, but the defendant is not liable, and they will find for the defendant."

Verdict and judgment in favor of plaintiff for $ 496. Motion for new trial overruled. Defendant appeals.

In the court below the defendant introduced the record of a divorce suit, to show that the father ...