Missi. & Tenn. R. R. Co. v. Gill

• Decision Date: 04 February 1889
• Citation: 66 Miss. 39,5 So. 393
• Court: Mississippi Supreme Court
• Parties: MISS. AND TENN. R. R. Co. v. H. I. GILL

5 So. 393

66 Miss. 39

MISS. AND TENN. R. R. Co. v. H. I. GILL

Supreme Court of Mississippi

February 4, 1889

APPEAL from the circuit court of Tate county, HON. W. M. ROGERS Judge.

The plaintiff, Gill, and his wife were passengers upon the train of defendant, with tickets to Senatobia, their home. Upon the arrival of the train at that station they arose to leave the car, but were prevented from alighting by the crowding into the coach of a large number of excursionists, who desired to get on board, and for the most part sought to enter at the end of the coach at which plaintiff and his wife were seeking an exit. The conductor was assisting passengers at the other end of the car. The train stopped a very short time, as was usual at that station, and moved off before plaintiff and his wife had succeeded in getting out.

When the train started plaintiff called to a friend to pull the bell-cord to signal the engineer to stop, which was done, and in doing so the bell-cord was accidentally broken.

After the train had gone about two or three hundred feet, plaintiff saw the conductor and demanded that he stop the train and allow him and his wife to get off, telling him that he had important business and that his wife was sick. The conductor replied that the train carried the United States mail, and could not stop for anything, and, at the same time, said "You have broken my bellcord, sir." Plaintiff testifies that this was said in angry and insulting manner although he does not state what his manner was and wherein it was insulting. The conductor informed plaintiff that there would be an excursion train returning to Senatobia in an hour, and he could return on it, and that he would see the conductor of that train about it. Plaintiff stopped at the next station and waited one hour and returned on the excursion train, paying sixty cents to return.

Several days after returning, plaintiff wrote to the general superintendent of the railroad company, recounting the circumstances, and asking for damages for the "unjust unkind, and cruel manner in which he and his wife were treated." The language of the conductor to him was set out in the letter, but nothing was said as to his language or manner being insulting, or being so construed. The plaintiff lost one day from his business as bookkeeper, but it was not charged up to him. No actual damages, besides the sixty cents for return passage, was shown. This suit was brought by H. I Gill, who laid his damages at four thousand dollars.

One Russell, station agent of defendant at Senatobia, was introduced as a witness for the defendant and examined at length. Afterward plaintiff interrogated another witness for defendant upon cross-examination as to the custom of conductors to telegraph the arrival and departure of trains at stations, and as to the record kept of such telegrams. This witness did not know whether such record was kept or not. Defendant then recalled Russell, who had not been asked about this when on the stand, and offered to prove that such a record was not kept, and that the messages announcing the arrival and departure of the trains were never preserved. No objection was made by counsel to the re-introduction of the witness, Russell, but the court refused to allow him to testify again, because, as the judge stated, he had once been upon the stand, and it was defendant's duty then to have exhausted his testimony--that this was the rule of the court.

The court refused to charge the jury for the defendant that plaintiff was not entitled to punitive damages. Numerous instructions appear on the record, but it is not necessary to set them out, as the opinion upon that subject is confined to a consideration of the single instruction, refused as above.

The verdict awarded plaintiff four hundred dollars, and the court having refused to set it aside, the defendant appeals.

Reversed and remanded.

Oglesby & Taylor, for appellant.

The proof shows that appellee had ample time to alight from the car by the use of ordinary efforts and diligence. The removal of baggage, loading, and receipting for several packages of express, the sale of fifteen or twenty tickets by the agent while the train was stopped--all these circumstances show that the defendant's witnesses were correct in stating that the stop was longer than usual. It was the plaintiff's mistake and misfortune that he went to the wrong door of the car.

It was manifestly wrong to refuse the defendant's charge that this was not a case for punitive damages. Forsee v. Ala. G. S. R. R. Co., 63 Miss. 73; Chicago R. R. Co. v. Scurr, 59 Miss. 463. Appellee's claim for such damages was a pure afterthought. His first claim (see his letter to the company) was that he and his wife were crushed and injured, that his wife had been sick four days, confined to bed and attended by a physician. Although he recited the language and acts of the conductor, there was no intimation that he was insulting. His language was certainly not insulting. If his manner was, it should be stated, so that it could be seen wherein it was insulting. Gill is not to be the judge of this. There was no willful wrong or reckless disregard of plaintiff's rights. It is evident that he wished to be insulted. It paid to be insulted. If railroad companies are to be liable in such case, it may now be conceded that the manner will always be insulting.

The court should have permitted the witness Russell to be recalled and examined. Even upon the court's theory, the ruling was an arbitrary use of judicial discretion. It was not a case of recalling a witness to prove a fact overlooked, but to explain and make clear the truth as to a matter brought out by appellee's attorney on cross-examination of a succeeding witness.

T. W. White, on same side.

The proof abundantly shows that the train stopped a reasonable and sufficient length of time. It is claimed that under the circumstances plaintiff was hindered from getting off. If this be so, the circumstances were not caused by any improper act of the company. It is not pretended that the employees were not at their posts, or that any of them knew that Gill and his wife had not gotten out. No proof is in to show that any of them knew that the crowd was interfering with the disembarking of Gill and wife. It is not clear that the conductor had the right to interfere with passengers entering the car under the circumstances proven. N. O., St. Louis & C. R. R. Co. v. Burke, 53 Miss. 226.

To justify punitive damages, there must be a reckless disregard of plaintiff's rights. The recklessness complained of seems to have been in starting while certain persons held the guard-rail of the platform. If this were true, recklessness toward others could not be invoked by Gill, who was safe in the cars.

The insult feature of the case did...