Louisville, New Orleans and Texas Railroad Company v. Mask

• Decision Date: 02 May 1887
• Citation: 2 So. 360,64 Miss. 738
• Court: Mississippi Supreme Court
• Parties: LOUISVILLE, NEW ORLEANS AND TEXAS RAILROAD COMPANY v. JESSIE O. MASK, ADMINISTRATRIX

2 So. 360

64 Miss. 738

LOUISVILLE, NEW ORLEANS AND TEXAS RAILROAD COMPANY v. JESSIE O. MASK, ADMINISTRATRIX

Supreme Court of Mississippi

May 2, 1887

April 1887

APPEAL from the Circuit Court of Coahoma County GEO. F. MAYNARD ESQ., special judge, presiding by agreement, Hon. J. H. Wynn having been of counsel in the case.

On March 2, 1885, H. Mask purchased a ticket at Memphis, Tenn from the Louisville, New Orleans and Texas Railroad Company to Lula, a regular station on its line in this State, and took passage on the first train for Lula; his ticket was duly taken up and cancelled by the conductor. When the train approached the station the whistle was sounded and the train began to slow up. Mask and one Haynes, who were then the only passengers on the train, took their baggage and went upon the rear platform of the car. The conductor having looked into the car, and failing to see the two passengers, signaled the train to go ahead, and it did so. The name of the station was not called out. Mask and Haynes, having failed to get off rushed forward and exclaimed that they were being carried beyond their station, and asked that the train be stopped. The conductor immediately signaled the train to stop, which was done, the train then being several hundred yards beyond the depot. Mask got off the train and went back to the depot and finding no conveyance there had to walk home, a distance of three- quarters of a mile. This was about twelve o'clock at night, and the night was dark, cold, and rainy, the roadway was muddy, and Mask, who was an old and feeble man, was very much exhausted when he reached home. He went to bed immediately, and there remained for some days, and still continuing enfeebled, he made various efforts to regain his health, but without avail, and on 22d of April, 1886, died. Before his death he instituted this action against the Louisville, New Orleans and Texas Railroad Company to recover damages for the injury inflicted on him, and it was revived in the name of his administratrix, Mrs. Jessie O. Mask, after his death.

When the cause came on for trial at the March, 1887, term of court, counsel for the plaintiff "asked A. G. Hartgroves, a member of the jury, on his voir dire, whether or not he was in the employ of the defendant, and upon this being answered in the affirmative, plaintiff's counsel challenged said juror for cause. Before passing upon the competency of said juror, the court, at the instance of counsel for defendant, examined said juror further upon his voir dire, whereupon he stated that he knew nothing of the facts of this case, that he had never talked to any one about said facts, and had never heard of the case until that morning, and that he was not biased in favor of the defendant or against the plaintiff, that he was perfectly free to return a fair and impartial verdict. Whereupon counsel for the defendant resisted said challenge for cause of said juror." The court sustained the challenge and the defendant excepted.

Thereupon counsel for the defendant challenged for cause the juror James Young. "Said juror stated on his voir dire that at the October term, 1886, of said court he served as a juror in more than two cases; that he was not summoned as one of the regular panel of jurors for that term, but was summoned on the first Monday morning of court, and served for the ensuing week by order of the court, and was then sworn in and impaneled as a member of the regular venire for that term of court, and as such served for the ensuing week; that he had been regularly summoned as a regular juror for the present week of court" and had been regularly impaneled. The court overruled the challenge for cause made by the defendant.

It was shown by the testimony of Mrs. Mask and two physicians that Mask had been, some time in 1884, suffering from nervous prostration; that he had grown better, and was at the time he was carried by the station at Lula able to attend to his business, but that after that night he had never been able to attend to any business, and had never been well up to the time of his death, and that his services were worth one hundred dollars per month to his family. The evidence of the two physicians was further to the effect that his sickness after the walk from Lula, and continuing to the time of his death, was most probably induced by his exposure, and being compelled to walk from the railroad station to his home. It was further shown that a servant and horse were in waiting for Mask at the station, but that the train having passed, and no one having gotten off, the servant returned home, supposing that Mask had not come.

The defendant objected to the admission of the evidence as to defendant's sickness as too remote, but this objection was overruled.

The jury found for the plaintiff, and assessed the damages at one thousand dollars. The defendant appealed from the judgment of the court on such verdict.

Affirmed.

W. A. Percy, for the appellant.

1. That the case was not one for punitive damages is manifest. As soon as it was discovered that the passengers had not gotten off and at their request the train was at once stopped. They made no request or demand that it should be backed to the station, they gave the conductor no opportunity of correcting his unintentional error by carrying them back, but at once, of their own accord, and without any requirement of the conductor that they should do so, got off where it stopped. The conductor was polite and courteous. At the utmost plaintiff was only entitled to compensation for the actual damage suffered. Chicago R. R. Co. v. Scurr, 59 Miss. 456.

2. There is no proof of actual damage such as the law recognizes to the extent of a dollar. The amount awarded is punitive in its character, and so grossly excessive, as compared to the slight inconvenience and actual damage, that it is hardly to be conceived that it will be allowed to stand. The feeble health and age of plaintiff's intestate created no enlarged duty or responsibility on the part of defendant. Sevier v. Vicksburg R. R. Co., 61 Miss. 8.

The evidence of the two physicians shows that the objections of defendant to their testimony and that of Mrs. Mask should have been sustained.

It was too remote. Mask's illness was not the natural necessary result of being carried past the depot. Defendant's neglect was not the proximate cause. Hobb v. London, etc., Ry. Co., L. R. 10 Q. B. 111; Indianapolis, etc., Ry. Co. v. Birney, 71 Ill. 391; Lewis v. Flint and Pere Marquette Ry. Co., 18 Am. & Eng. R. R. Cases 263; Henry v. St. Louis, Kansas City and Northern Ry. Co., 12 Am. & Eng. R. R. Cases 136. The exposure to the cold, the change from a heated car to the outside atmosphere, were important elements in producing his sickness, and these must necessarily have concurred had he been landed on the platform at Lula. From his own witnesses it appears that riding instead of walking might have produced the same result. Can it be said that carrying the plaintiff past the depot was the "causa causans" of the sickness from which he suffered?--that the walk of three-quarters of a mile was the cause of all his trouble? Are not the facts that he was liable to this character of attack, that he was old and feeble, that in going from Lula to his home in that weather and at that hour of the night by any mode of conveyance he ran great risk of bringing on attack, and that this was a risk voluntarily assumed by him in leaving Memphis, to cut any figure in the case? The defendant was not responsible for the weather or for his bodily infirmities. It was liable for any actual damage resulting from negligently carrying him past the depot, but only for such actual damage as was the natural and probable result of that act. See Marble v. Worcester, 4 Gray 395.

Cutrer & Cutrer, for the appellee.

1. The juror Young was not a tales juror at the last preceding term of the court, and certainly he was a regular juror at the time the challenge was interposed. The statute, Code 1880, § 1661, creates a cause to challenge any tales juror who "has served as such in the trial of as many as three cases at that or the last preceding term of the court." The record shows that cause did not exist, and the challenge was very properly overruled.

2. And the court was equally free from fault in sustaining the challenge to the juror Hartgroves. The record shows he was at the time of the trial, in the employ of the company as its clerk or employee, and disqualified propter affectum. Hubbard v. Rutledge, 57 Miss. 7; Central Ry. Co. v. Mitchell, 63 Ga. 173; Thompson and...