New Orleans & N. E. R. Co. v. Martin

• Citation: 140 Miss. 410,105 So. 864
• Decision Date: 16 November 1925
• Docket Number: 25099
• Parties: NEW ORLEANS & N. E. R. CO. v. MARTIN. [*]
• Court: United States State Supreme Court of Mississippi

105 So. 864

140 Miss. 410

NEW ORLEANS & N. E. R. CO. v. MARTIN. ^[*]

No. 25099

Supreme Court of Mississippi

November 16, 1925

Division B

1. TRIAL. On motion for directed verdict, evidence to be considered most favorably for other party.

On motion of defendant for directed verdict, the evidence is to be considered most favorably for plaintiff, and, if so considered it tends to establish his case, it is for the jury.

2. CARRIERS. No breach of duty to passenger in not opening door of car at station not her announced destination.

There was no breach of duty owing by carrier to passenger riding in special car in not opening its vestibule door at a station which was not her destination, according to her ticket; she having given no notice of change of destination.

3. CARRIERS. No duty to back train to allow passenger to alight at station passed.

Carrier on being informed for the first time after passing a station that a passenger, though having ticket for another station desired to get off at the station passed, was under no duty to back the train to the station.

4 CARRIERS. Case for punitive damages not made by testimony as to manner of conductor.

Testimony of passenger that, when conductor refused to back train to station passed, "his manner was insulting and offensive," held not to make case for punitive damages.

HON. W L. CRANFORD, Judge.

APPEAL from circuit court of Jones county, HON. W. L. CRANFORD, Judge.

Action by Mrs. J. R. Martin against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Bozeman & Cameron, for appellant.

I. As to liability of defendant for carrying plaintiff by Ellisville. This liability, if any, was necessarily based upon negligence of the defendant, or its train crew. In the particular case the negligence consisted, if at all, not in the failure to call, or announce, the station of Ellisville in the special car where plaintiff was riding; because the plaintiff knew when she reached the station of Ellisville and went to the door of the car to get off. The negligence complained of was the failure to have the door of the special coach open at Ellisville, so that the plaintiff could get off the car. The court instructed the jury in this regard, "That it is the duty of the railroad companies carrying passengers to call out all stations for passengers where the train regularly stops, and open up the doors of the train and give passengers an opportunity to get off." This may be true in a general way, and as applied to passengers generally; but it is an erroneous statement of the law as applied to the plaintiff in this case.

Remembering the undisputed facts, (a) that plaintiff was riding in a special coach assigned and limited, as she knew, to returning delegates from the Eastern Star convention, and not for the use of passengers generally, and (b) that plaintiff had a ticket to Laurel, which she surrendered to the conductor on leaving Meridian, and (c) that she did not inform the conductor or any of the train crew at any other time, that she intended to go to Ellisville, and not to Laurel, we submit that the contract of the defendant was to carry the plaintiff to Laurel, and not to Ellisville; and the only duty which the defendant owed to the plaintiff in this regard was to announce the station of Laurel, and to afford the plaintiff the reasonable opportunity to get off the train at Laurel, the station to which the defendant contracted to carry her. The plaintiff herself testifies that this duty was performed.

The plaintiff below argued that the train crew ought to have known that she did not get off the train at Laurel. There is no proof that either the conductor or flagman knew that plaintiff did not get off at Laurel. The train crew were under no duty to check up the coach at Laurel and to know whether the plaintiff had gotten off at Laurel or not. 4 R. C. L., sec. 538, page 1089 and note 11. Their only duty was to announce the station of Laurel and give plaintiff a reasonable opportunity to get off. Southern R. Co. v. Kendrick, 40 Miss. 374 at 384; N. O., etc., R. R. Co. v. Statham, 42 Miss. 607; Sevier v. Vicksburg R. R. Co., 61 Miss. 8. In accordance with these announcements of the law, the defendant performed its full duty to plaintiff below when the train crew announced the station of Laurel, her destination, and gave her a reasonable opportunity to leave the train there.

II. As to alleged insult. The court erred in instructing the jury, "If you further believe from a preponderance of the testimony in this case that the conductor on the train in question was insulting or insolent in his manner, or attitude toward her (the plaintiff), then the jury may award punitive damages in addition to actual damages, if any." There is no evidence in the record which warranted the court in submitting the question of insult to the jury. It is true that the plaintiff testified that the conductor was "very discourteous and insulting about it, and refused to put me off," and that the conductor "in a very insulting way, demanded my fare;" but on cross-examination this witness repeated the words of the conductor and the entire conversation, and all that the conductor said was this; When asked to stop the train, he said, "I can't stop the train," and further, "I," meaning the plaintiff, "would have to pay my fare to Hattiesburg." Plaintiff was asked. Q. "That was the whole conversation between you and the conductor?" A. "That was all." For leading case on this question see: Miss. & Tenn. R. Co. v. Gill, 66 Miss. 39; K. C. M. & V. R. Co. v. Fite, 67 Miss. 373; A. & V. Railway Co. v. Lowry, 100 Miss. 860; Light Co. v. Taylor, 112 Miss. 60; M. & O. R. Co. v. Farrior, 115 Miss. 96.

On the authority of these cases we submit that on the plaintiff's own testimony the court erred in submitting the question of punitive damages to the jury and erred in refusing to instruct the jury at the request of the defendant that plaintiff was not entitled to recover any damages in this case on account of any insulting language or conduct on the part of the conductor.

Jeff Collins, for appellee.

It is necessary to determine whether or not Mrs. Martin was a passenger on the defendant's train to Ellisville. If she was a passenger then the failure of the defendant to open the door and afford her an opportunity to get off was negligence. Mrs. Martin was either a passenger or she was not a passenger. There is no middle ground. It is not the rule of this defendant and was not shown to be the rule of this defendant that persons must, before boarding its trains, purchase tickets in order to become passengers. Therefore, if a person boards the train of the defendant intending, when asked to pay the fare he becomes a passenger. 4 R. C. L., page 1028, sec. 487; 4 R. C. L. page 1032, sec. 490; 4 R. C. L., sec. 47; 6 Cyc., page 537, sec. b (11); St. L. & S. F. R. Co. v. Sanderson, 54 So. 885.

As we take it from the facts in this case and from the law of this case, there isn't any escape from the conclusion that Mrs. Martin was a passenger on defendant's train and destined for Ellisville. If she was a passenger on the train and destined for Ellisville, the authorities hold that it is the duty of some member of the train crew to announce the arrival at the stations where the train regularly stops and afford an opportunity to the passengers to disembark. Since appellant relies upon the case of Southern R. R. Co. v. Kendrick, 40 Miss. 374, we presume that he will not dispute the correctness of the principle of law therein announced. We further quote from Sevier v. Vicksburg & Meridian R. R. Co., 61 Miss. 8, cited by appellant.

It was the duty of appellant on this occasion (1) to go into the coach and announce the fact that the station at Ellisville had been reached; (2) to afford appellee an opportunity to get off the train. It did not do either of these necessary things. Mrs. Martin knew when she got to Ellisville, and, therefore, we do not make any point on the question of the duty of the conductor to announce the station, but we certainly say that it was negligence on the part of the railroad company to have the door of a passenger train closed so that passengers could not get off at the different stations along the road.

Now, if defendant was guilty of negligence in not affording appellee an opportunity to get off at Ellisville, this of itself would entitle appellant to compensatory damages. If, after defendant had been shown to be guilty of negligence toward this appellee, appellee went further and showed that the conductor acted insolent or insulting or harsh toward her, then the jury was warranted in assessing punitive damages. Dorrah v. Illinois Central R. R. Co., 3 So. 36; Yazoo & Miss. Valley R. R. Co. v. Hardie, 55 So. 42.

Appellant insists in his brief that there was nothing in the words of the conductor that was insolent or insulting. But we are not to judge the manner and conduct of the conductor altogether by the words he used. He may have had a very insulting and offensive manner in stating a proposition, when the mere statement of the proposition itself would not be insulting. Appellant cites several authorities in his brief to sustain his contentions that appellee was not entitled to exemplary damages. Upon a careful examination of the cases cited, together with an examination of another line of authority, it will be found that the cases cited by appellant are not in point with the facts in the case before the court.

Leonard B. Melvin, also, for appellee.

There are but two issues invoked: (1) Was appellant railroad company negligent to this passenger? (2) Was the conductor rude, insulting, or did he...