Mobile, J. & K.C.R. Co. v. Jackson

• Decision Date: 13 April 1908
• Docket Number: 12,920
• Citation: 92 Miss. 517,46 So. 142
• Parties: MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY v. VICTORIA C. JACKSON
• Court: Mississippi Supreme Court

46 So. 142

92 Miss. 517

MOBILE, JACKSON & KANSAS CITY RAILROAD COMPANY v. VICTORIA C. JACKSON

No. 12,920

Supreme Court of Mississippi

April 13, 1908

FROM the circuit court of Union county, HON. JAMES B. BOOTHE Judge.

Mrs Jackson, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor for $ 5,000 defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Fontaine & Fontaine, for appellant.

The fact that the deceased was intoxicated did not alone deprive him of the right to be upon appellant's train, and the degree of care due a drunken passenger is the same as that due a sober one. Milliman v. New York, etc., R. R Co., 66 N.Y. 642; Stewart v. Chicago Ry. Co., 67 Mich. 380.

Ordinary care and due diligence for the safety of an intoxicated passenger on railroad track are all that is required of the company. Louisville Ry. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep., 186.

And the law exacts from one intoxicated the same care and precaution to avoid injury as it would from a sober person of ordinary prudence under like circumstances. Columbus & W. Ry. Co. v. Wood, 5 So. 463, and authorities cited; Johnson v. Louisville, etc., Ry. Co., 16 So. 75.

And when intoxication is shown the burden of proof is on the plaintiff to show that he was in the exercise of ordinary care and prudence to entitle him to recover for an injury. Burns v. Elber, 32 Wis. 605; Cramer v. Burlington, 42 Iowa 315; Hubbard v. Mason City, 60 Iowa 400.

And the doctrine that voluntary incapacity is no excuse is plainly deducible from Railroad Co. v. Vallely, 32 Ohio St. 345; Thorp v. Brookfield, 30 Conn, 320; Toledo Ry. Co., v. Riley, 47 Ill. 514.

The undisputed evidence in the case shows that the deceased Jackson and his companion Purvis had been drinking before they got on defendant's train at New Albany, and drank after they got on the train; did not leave the train at Ecru, the station on appellant's road, to which they had purchased tickets, but paid their fare to Ball's Crossing (a flag station on defendant's road and no regular stopping place) and demanded and insisted that train stop and they be let off there for the purpose of attending a party or dance. That deceased Jackson was boisterous using profane and indecent language, until the conductor threatened to put him off of train. The conductor would have been justified in ejecting him from the train at a proper place and under suitable conditions, having reasonable regard for the safety of his life and limb. The conductor having this right (but there was no ejectment, Ball's Crossing was their destination) and there was no negligence, or breach of duty in allowing him to get off the train, especially with his companion, Purvis, at point of destination, or to assist him in departing on his demand to get off. Nash v. Southern Ry. Co., 33 So. 932.

The injury did not happen to Jackson on the train but after he got off at his destination with his companion, Purvis. His leaving the train was not the natural or proximate cause of his death, but was due to his voluntary intoxication. Meyer v. Kind, 72 Miss. 1.

May, Flowers & Whitfield, on the same side.

The record shows:--

I. That the deceased did have a companion with him and the employes of the railroad and passengers had every reason believe the two men were together.

II. That the deceased was not in a stupor but on the other hand was very much alive, being loud and boisterous, cursing and carousing around the car.

III. That he did buy a ticket to Ecru and paid his fare to Ball's Crossing and that he had made it known to every one that he was going to get off at Bali's Crossing.

IV. That he got off at his own request and demand and that of his companion, and he was assisted off and not ejected.

V. That the deceased met his death after he had severed all connection with the railroad company and it was through his own negligence, wilfulness and misconduct that he did so, and the railroad company cannot be held responsible.

C. Lee Crum, for appellee.

The jury found as a matter of fact in this case:--

1. That deceased, W. H. Jackson, was a passenger from New Albany to Ecru on appellant's road and had a ticket for his transportation.

2. That the conductor did not collect deceased's fare from Ecru to Ball's Crossing.

3. That deceased did not request to be put off at Ball's Crossing.

4. That the conductor and trainmen forcibly ejected him at Ball's Crossing.

5. That the deceased was drunk, but that his drunkenness did not contribute to his injury.

6. The ejecting the deceased at the time, place and under the circumstances was negligence on the part of the railroad company and was the proximate cause of the injury.

7. That plaintiffs are thereby damaged $ 5,000.

All these facts are sufficiently supported by the evidence.

The appellant company accepted the deceased as a passenger at New Albany for Ecru when he was really and apparently too drunk to care for himself. In this condition the appellant, as a common carrier of passengers, had the right to reject deceased, but when it accepted him, knowing his condition, it obligated itself to use special care and caution to prevent injury to deceased and to put him off at Ecru the place of his destination, in a place of safety for one in his condition, if he was not able to disembark. This the defendant failed to do. This proposition of law is supported by the authorities: 3 Thompson on Negligence, (2nd ed.) sec. 2740, Ib., 3246; Meyer v. St. Louis R. R. Co., 58 Am. & Eng. R. R. Cases, 111; 54 F. 116; 10 U. S. App., 677; Croom v. Chicago, R. R. Co., 52 Minn. 296; Weightman v. Railway Co., 70 Miss. 563; 12 So. 586; Zachery v. Mobile, etc., R. R. Co., 75 Miss. 746, 23 So. 434; Railroad Co. v. Stratham, 42 Miss. 607; Holmes v. Oregon R. R., 6 Sawy. (U. S.), 262; Illinois, etc., R. R. Co. v. Smith, 37 So. 643.

OPINION

WHITFIELD, C. J.

Learned counsel for the appellee says frankly in his brief that "the case at bar is for injuries resulting from the action of the conductor and crew in putting off deceased after he had passed Ecru, his destination, at a time and place and under conditions that would not only reasonably lead to his death, but must necessarily have resulted in drowning or freezing him to death"; and the declaration itself plainly shows that the suit is for damages for the alleged willful and wanton wrong of the appellant company in ejecting the deceased from the cars of appellant when the deceased was drunk to insensibility and utterly incapable of sitting, walking, or standing, the appellant well knowing these facts, and at a time and place--that is to say, in the nighttime and at a flag station, with the ground covered with ice, sleet, and snow--when to so put him off in such condition meant death.

Now, what is the case made by the testimony? Practically this: The deceased, Jackson, a section hand fifty-eight years old, strong and robust, and one Purvis, twenty-one years old, got to drinking Peruna in the town of New Albany on the 2d of February, 1905, the day of the night on which Jackson was drowned, and drank along through the day a good deal of Peruna. They boarded the cars, having purchased tickets from New Albany to Ecru. After they got on the car they drank about a bottle and a half more of Peruna, making about four bottles or more of Peruna that the two consumed during the day and this part of the night. The conductor took up Purvis' ticket. He did not take up Jackson's ticket; but Jackson told him he had, and the conductor yielded the point. It is clearly shown that Jackson's ticket was found in his pocket after his death. It is further clearly shown, by the uncontradicted testimony of the conductor, that after the train had passed Ecru the conductor asked these two men where they were going, and they told him they were going to Ball's Crossing, whereupon he collected the cash fare from each, from Ecru to Ball's Crossing. Learned counsel for appellee says, in the passage just above quoted, that the suit was for putting off the deceased after he had passed Ecru, his destination. There is not a particle of testimony to contradict the statement of the conductor that he took the cash fare from Ecru to Ball's Crossing; and it is shown, also, without contradiction, by two or three witnesses, that both Purvis and Jackson said they were going to Bali's Crossing--one witness saying to a party, another witness saying to a dance, and by another witness that he invited Jackson to go home with him that night, and he declined to do so, saying that he was going to Ball's Crossing, and by the conductor and another witness, all uncontradicted, that the conductor offered to take Jackson to Pontotoc free, if he would go on, which Jackson declined, insisting on getting off at Ball's Crossing. Learned counsel for appellee insists, too, in the statement quoted, that the suit is for the ejection, or putting off, of the deceased. The whole testimony, uncontradictedly, shows that Purvis and Jackson were not put off or ejected, but that the one got off, Purvis, and the other, Jackson, was assisted off, on their own demand and upon their own insistence.

The strongest feature of appellee's case is the insistence that Jackson was drunk to the point of insensibility when he got on the cars--so drunk that he could not sit, stand, or walk, or in any manner take care of himself, and that this condition was thoroughly known to the conductor, and that hence the conductor, in allowing him to get off even, or be assisted off in that condition at the place, a public crossing and flag station, with the ground covered with sleet and snow and ice, and...