Metcalf v. Yazoo & Mississippi Valley Railroad Co.

Decision Date23 May 1910
Docket Number14499
Citation97 Miss. 455,52 So. 355
PartiesHARLEY METCALF, EXECUTOR, v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
CourtMississippi Supreme Court

FROM the circuit court of, first district, Bolivar county, HON JAMES M. CASHIN, Judge.

Metcalf executor of the will of Conly, deceased, appellant, was plaintiff in the court below, and the railroad company appellee, was defendant there. The suit was instituted by Conly in his lifetime, he died before the trial, and the suit was revived in the name of his executor. From a judgment predicated of a peremptory instruction, in defendant's favor, plaintiff appealed to the supreme court. The opinion of the court states the facts.

Reversed and remanded.

Shields & Boddie, for appellant.

In this case the appellant was entitled to recover, first, if appellee company owed decedent a duty; secondly, unless the decedent was debarred of recovery by reason of contributory negligence. The court below held that the question of contributory negligence was one for the jury, but that the appellee company owed decedent no duty whatever, and excluded the appellant's evidence and instructed the jury to find for the railroad company.

It is clear that under all the authorities, the question of contributory negligence in this case was one for the jury.

As to whether or not the company owed the decedent any duty whatever, other than the duty to abstain from wilful wrong, we say that under our form of pleading, a declaration must contain only a statement of the facts constituting a cause of action. The declaration in this case did contain a statement of facts constituting a cause of action. The railroad company, by not demurring to the declaration, recognized this fact. While we contend that appellant's decedent was a passenger, still, even though he were not technically a passenger under the facts set forth in the declaration and proved in evidence, clearly the railroad company owed appellant's decedent a duty other than to abstain from wilful wrong. Whether that duty amounted to that high degree of care owing to a passenger, or whether it did not rise to that height, still, the railroad company owed appellant's decedent a duty which it did not discharge.

To those having business with a railroad, the company owes special obligations of duty different from those due the general public. To the latter it owes nothing beyond the observance of the duties of good neighborhood; among these is the doing of no wilful or wanton injury, and of not maintaining on or near the platform or approaches to which the public may be expected to go, any unseen trap or pitfall from which personal injury is likely to ensue. Montgomery, etc., R. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72.

The degree of care is not fixed simply by the relation of carrier and passengers. It is measured by the consequences which may follow the want of care. The appellant's decedent was, as we contend, a passenger. 6 Cyc. 536 and notes.

As stated above, whether the plaintiff's decedent was technically a passenger or not, the defendant company owed him a duty not to maintain on or near the platform or approaches to which the public may be expected to go, any unseen trap or pitfall from which personal injury was likely to ensue. Lepnic v. Gaddis, 72 Miss. 200.

The facts in this case are almost identical with those in the case of Yazoo, etc., R. R. Co. v. Lane, decided by this court June 15, 1908. Lane testified: "I fell into a hole, and struck my head against something, and was knocked unconscious for several minutes." In this case Conly testified that he was going out of the depot and fell into a hole and was knocked unconscious for several minutes. There was a plank across the ditch that Lane fell into, hence he did not see it. There was a ditch under the plank on which Conly walked into the depot, hence Conly did not see the ditch. There were no lights to show Lane where the ditch was, nor were there any lights to show Conly where the ditch was. In both cases the court will observe that the injured parties were afflicted alike, suffering severely from nervousness and headache.

Conly was not legally required to be on the lookout for pitfalls; he was there by implied invitation. Alabama, etc., R. Co. v. Godfrey, 47 So. 185; Yazoo, etc., R. Co. v. Lane, supra; Lepnic v. Gaddis, 72 Miss. 200.

Conly had a mileage book and was entitled to ride on appellee's trains whenever he chose, so long as his mileage book lasted. He went to the depot in and about his passage on appellee's train; and while on the premises of appellee, he was vested with all the rights of a passenger or customer. Yazoo, etc., R. Co. v. Lane, 46 So. 959.

A man went to the depot to meet his wife. While seeking a retired spot, he fell in a hole. The court held him to be a customer of the road. 5 Am. Eng. Ency. of Law, 573.

This suit is in tort and not in contract. The appellee pleaded not guilty. It is manifest that whether or not Conly was a passenger under the facts alleged and proved, the railroad company was guilty of a breach of a duty for which it should be held liable. Certainly appellant is entitled to recover in this case if the railroad company is liable at all. Under our law all a plaintiff is required to do in a declaration is to give a statement of the facts in ordinary and precise language and it shall not be an objection to maintaining an action that the form thereof should have been different. Code 1906, § 729.

It was the duty of the railroad company under the facts in this case to maintain safe approaches to its depot grounds and it is liable if one who is invited there is injured by reason of its failure so to do whether the person be a passenger in the technical sense or not.

Mayes & Longstreet, for appellee.

The relation of passenger and carrier did not exist between Conly and the railroad company. To give rise to the relation of passenger and carrier there must not only be an intent on the part of the former to avail himself of the facilities of the latter for transportation, but also an express or implied acceptance by the latter of the former as a passenger. Until there is an acceptance, that is, until the express or implied knowledge of the carrier or his employer, the person seeking to become a passenger has indicated his intention to become a passenger which intention has been in some way acquiesced in, at least to the extent of not refusing transportation, the relation does not arise even though the purpose of the person attempting to become a passenger is to pay fare when required. * * * But the mere fact of intention to go on board a car, which intention has not been by acts or otherwise indicated to the servants of the railroad company, does not render the person having such intention a passenger, although he may be entitled to transportation. 6 Cyc 538.

Where a person with a bona fide intention of taking passage upon a train goes to the station within a reasonable time prior to the hour of departure of the train and there, either by purchase of ticket or in some other manner indicates to the carrier his intention to take passage, from that time on, while waiting for a train, he is entitled to the rights and privileges of a passenger. * * * But unless some contract, either express or implied from the circumstances, can be shown, it is difficult to see how the relation can be held to be established. The mere intention to take passage upon the carrier's vehicle certainly ought not to have that effect under any circumstances. But if the intention and act of the party combined are such as to give rise to an implied contract to carry, the duty and obligation of the carrier as such at once begins. But so long as the party merely entertains the wish or intention no obligation has arisen on either side, and he is at liberty to change the intention at any time. Hutchinson on Carriers, §§ 1006, 1015.

The relation of passenger and carrier begins when one puts himself in the car of the carrier or directly within its control with a bona fide intention of becoming a passenger and is accepted as such by the carrier. 5 Am. & Eng. Ency. of Law (2nd ed.), 488; Spannagle v. Railway Co., 31 Ill.App. 460; Webster v. Lynchburg R. R. Co., 16 Mass. 298; Allender v. Railway Co., 37 Iowa 264.

Both parties must enter into and be bound by the contract. The passenger may do this by putting himself into the car of the railroad company to be transported, and the company does it by expressly or impliedly receiving him and accepting him as a passenger. The acceptance of the passenger need not be direct or expressed. There must be something from which it may be fairly implied. One does not become a passenger until he puts himself in charge of the carrier and has been expressly or impliedly received as such by the carrier. Illinois, etc., R. Co. v. O'Keith, 61 Am. St. Rep. 68; Elliott on Railroads, 1581; Bricker v. Railway Co., 132 Pa. St. Rep. 1; Chicago v. Jennings, 60 N.E. 818; Bricker v. Caldwell, 18 A. 983.

One who goes upon the premises of a railroad station from curiosity or for the transaction of business not with the company, is not a passenger. Giles v. Railroad Co., 98 Dec. 317; Railway Co. v. Schwindling, 47 Am. Rep. 706; St. Louis R. Co. v. Fairbow, 48 Ark. 441; Andrews v. Railroad Co., 86 Miss. 133; 5 Am. & Eng. Ency. of Law, 488.

Can it be seriously charged that in the light of the authorities that Conly was a passenger? He started out to Wynn's store upon private business and stopped by the depot, not for the purpose of taking passage, not to wait for a train, and, in short, for no purpose which could be construed as offering himself as a passenger, and it surely cannot be claimed that not only had he offered himself as a passenger, but also...

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