McMurtray v. Louisville, New Orleans & Texas Railway Co.

Decision Date21 April 1890
CourtMississippi Supreme Court

FROM the circuit court of Warren county, J. D. GILLAND, ESQ. Special Judge, by consent of parties.

The facts are stated in the opinion.


Dabney McCabe & Anderson, for appellant.

1. The defense of contributory negligence is an affirmative one, and cannot be availed of unless pleaded by the defendant. R R. Co. v. Horst, 93 U.S. 291; R. R. Co. v. Gladmon, 15 Wall. 401; Gas Light Co. v. Montgomery Ry. Co., 5 So. 735; Hickman v. Ry. Co., 66 Miss. 154; Vicksburg v. McLain, ante, p. 4.

2. Plaintiff was not guilty of contributory negligence. Boarding a moving train is not necessarily contributory negligence, but whether it is or not is a question of fact, not of law. Beach on Neg., §§ 152 and 155. Am a general proposition, cases of negligence present a mixed question of law and fact. The judge defines negligence in the charges, and the jury applies the definition. Ib., § 161.

3. If mistaken in this, yet if plaintiff's negligence was not the proximate cause, the causa causans of the injury, it cannot be availed of as a defense, and the appellant is entitled to recover. Ib., §§ 3 and 321; Gas Light Co. v. Ry. Co., supra; Pattison Ry. Ac. Law, § 23.

The act of appellee in starting the train at the time and in the manner set out in the evidence was the proximate cause of the injury, and this act of the defendant was negligent. If the train did not stop, this was certainly negligence. If it slowed up and thus invited passengers to get aboard, it should have maintained this slow motion long enough to allow those whom it invited to enter to do so with safety. It must not, set a man-trap and play with human life. Conner v. Street Ry. Co., 4 N.E. 441.

4. But if mistaken in the foregoing positions, yet after the defendant's servants found plaintiff in his perilous position, it matters not how negligent he may have been in putting himself there, it should have exercised care to prevent the injury. The whole accident occurred in the presence of an agent and servant of the company. He did nothing to prevent the injury. Did not pull the plaintiff up to the platform--did not signal the train to stop--did not pull the bell cord--did nothing at all except to tell appellant to turn loose. The porter looked on with fascination and saw appellant dragged 150 yards until, from sheer exhaustion, he fell. Then, for the first time, the porter gave the signal to stop. It is therefore manifest that if appellee had exercised even the slightest care, after discovering plaintiff's peril, the injury would have been averted. Shear. & Redf. on Neg., § 36, et seq.; Thomp. Neg., 1157.

Murray F. Smith, for appellee.

The undisputed facts, plainly stated, are these: With a valise in his right hand, an old man, 65 years old, on a dark night, boarded a moving train, catching with his left hand the banister with a "death grip," because he knew that if he fell he would be crushed to death.

It was not necessary to plead the contributory negligence of the plaintiff. His own testimony showed this conclusively, and surely the defendant can avail of the testimony of his opponent. Special pleadings are required to prevent the opposite party being taken by surprise. It is hard to conceive of a plaintiff being surprised by the facts relied on and testified to by himself. Besides negligence and contributory negligence, when the facts are conceded, are matters of law. The jury have no other province but to find the facts. The authorities cited by appellant on this point do not sustain his position.

It was the grossest contributory negligence to attempt to board the moving train. Bardwell v. R. R. Co., 63 Miss. 577; Dowell v. R. R. Co., 61 Ib. 519; Burrows v. Ry. Co., 63 N.Y. 556; Central R. R. Co. v. Letches, 69 Ala. 106.

The failure to stop at the station did not relieve the plaintiff from the duty to exercise ordinary care. Although the company may have been negligent in this respect, it was still the duty of the plaintiff to use prudence in attempting to get aboard the train. R. R. Co. v. Le Gierse, 51 Tex. 189; R. R. Co. v. Huston, 95 U.S. 697.

No negligence can be imputed to the company because of the action of the porter. After the plaintiff had deliberately put himself in peril, his dereliction cannot be excused because a man who sees him in that position and who, as any other man would be, is excited, possibly did not do the exact thing at the right time to prevent or mitigate the injury. Besides, it does not appear that the advice of the porter was not the best under the circumstances. Again, the porter is not the man to signal the train to stop or to control its motion. The conductor and engineer are the parties.



To the declaration filed by plaintiff in the court below, the plea of the general issue was interposed. After plaintiff had introduced all his evidence and rested, the defendant corporation moved to exclude all the evidence from the consideration of the jury, because the evidence neither proved, nor tended to prove liability on the part of defendant, and asked the court to instruct the jury to find for defendant, which was thereupon done. This action of the court was based upon the idea that all the evidence taken together showed conclusively that there had been such contributory negligence upon the part of plaintiff as to demonstrate that defendant was not liable, --that there were no facts either proving or tending to prove liability [i. e., that the injuries complained of were clearly shown by the facts--the undisputed facts--to have been the result of plaintiff's negligence], and that hence there was nothing to submit to the determination of a jury, but only a question of law to be settled by the court.

Negligence is a mixed question of law and fact: the court declares what is negligence, and the jury finds the facts, in the particular case, and reports to the court what such facts show upon the question of negligence, viewed in the light of what the court has declared negligence to be. Now in this, as in suits for malicious prosecution and the like cases, where the question is a mixed one of law and fact, it is not only permissible, but, in proper cases, it is the duty of the court to assume the responsibility of withdrawing the case from the jury, and of deciding it purely as a legal question. When the evidence neither proves, nor tends to prove liability on the part of a defendant, or where the facts shown in evidence, and all the inferences from those facts, make it clear that plaintiff's own negligence produced, or contributed, as the proximate cause, to produce the injury for which recovery in damages is sought, then, and in every such case, the question is for the court alone. Says Beach, in his work on Contributory Negligence, p. 454, under the title, Contributory negligence as...

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