New Orleans & Northeastern Railroad Co. v. Mobly

• Decision Date: 22 December 1913
• Docket Number: 16,213
• Citation: New Orleans & Northeastern Railroad Co. v. Mobly, 63 So. 665, 106 Miss. 323 (Miss. 1913)
• Parties: NEW ORLEANS & N.E. R. CO. v. WILL MOBLY
• Court: Mississippi Supreme Court

63 So. 665

106 Miss. 323

NEW ORLEANS & N.E. R. CO. v. WILL MOBLY

No. 16,213

Supreme Court of Mississippi

December 22, 1913

APPEAL from the circuit court of Lauderdale county, HON. JNO.L BUCKLEY, Judge.

Suit by Will Mobly against the New Orleans and Northeastern Railroad Company.From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

R. H. &amp J. H. Thompson and A. S. Bozeman, for appellant.

Under the facts in this case, as testified to by the plaintiff himself, there was absolutely no duty owing by the defendant to the plaintiff, at the time of his injury, which the defendant neglected or failed to perform, and it cannot be said, therefore, that the injury to the plaintiff was caused by any negligence on the part of the railroad company, and the court below erred in refusing the peremptory instruction asked by the defendant.

The principles of law which control in this case are briefly and clearly stated by this court in the case of Morehead v Railroad Co.,84 Miss. 112;Murdock v Railroad,77 Miss. 487;Railroad Co. v. Jones, 35 So. 193.

Mobley, his day's work being done, in attempting to get on the coach for his own convenience merely, was at best a mere licensee, and the railroad company was under no obligation to him, except to do him no wilful wrong, and since there was no duty or obligation resting upon the railroad company to Mobley, at this time and place, there could have been no negligence or breach of duty on its part toward him.Railroad Co. v. Lucas,89 Miss. 411.

We submit further that in attempting to get on the moving car on the main line at nine o'clock at night, without any notice to any of the crew, that Mobley was guilty of such contributory negligence as to bar his right to recovery.Nichols v. Railroad,83 Miss. 126.

So it was held by this court, in the case of Collins v. Railway Co.,89 Miss. 375, that in the absence of a showing that he was seen by an employee of the defendant railroad company, a plaintiff is not entitled to recover of a railroad company for injuries suffered from the sudden jerking of a train on which he sought to take passage, as it approached a crossing, where it generally stopped; although persons were accustomed to do just what the plaintiff was there attempting to do.

We deem it unnecessary to cite cases in support of the rule which we rely upon, so often announced by this court, that the railroad company owes no duty to a trespasser or a mere licensee, except to abstain from wilful, or wanton injury.

Notwithstanding the prima facie statute it was the duty of the court below in this case to give a peremptory instruction for the defendant, because all the facts relating to the injury are in evidence and they clearly and fully exonerate the railroad company from any liability.

This court said, in the recent case of Fuller v. Railroad Co.,100 Miss. 705: "Presumptions in all cases must yield to facts, yet they fail, not because of the law, but because of the facts, and completely destroy the presumption; and hence when the statute, which is the law, gives this presumption, the courts have no right to make or charge a different rule.In so doing the court is substituting judge-made law for statutory law.Of course, when all the facts relating to the injury are in evidence, the court has a right to draw a conclusion based upon the facts, and in proper cases to give a peremptory instruction as these facts may justify."

And this expression of the court was reiterated and approved by this court in the still later case of Billingsley v. Railroad Co.,100 Miss. 612.

In the Billingsley casethe court below granted a peremptory instruction for the defendant, notwithstanding the prima facie statute, and this was approved and affirmed by this court.

Fewell & Cameron, for appellee.

Plaintiff was entitled to a judgment under one of two theories.If he was to be believed, he was entitled to an instruction in his favor.If he wasn't to be believed then, under the undisputed proof that he was injured by the running of the defendant's train, he was entitled to a peremptory instruction because the defendant failed to prove how he was injured.

So we say the judgment was and is correct and on this theory the judgment should be affirmed even though errors appear.It is monstrous to say that the appellant owed the appellee no duty except to refrain from wilfully or wantonly injuring him, in view of the testimony in this case.The appellee was not a trespasser, certainly.Was he a mere licensee?

29th Cyc. 451, defines a licensee to be a person, who is neither a passenger, servant nor trespasser, and not under any contractual relation with the owner of the premises, and is permitted to come upon the premises for his own interest, convenience or gratification.

Is such a definition applicable to this appellee under the facts of this case?Is it possible that any court will or would hold that Mobley was a licensee as defined above?We think he was not a licensee.

Our supreme court, speaking through Chief Justice WHITFIELD in the case of Owens v. Railroad Company, reported in 94 Miss. 378(and this case is based upon the alleged liability of a railroad company to a little child, the daughter of the foreman of an extra gang, injured by the turning or tilting of a plankway between two of the defendant's cars) said: "It is not entirely accurate to say that she was a mere licensee.Undoubtedly she was not a trespasser in any sense.She was where she was with the full knowledge and consent of this company, in accordance with its usage and custom, and, being where she was, with such full knowledge and consent on the part of the company itself, etc., it certainly did owe her, in her situation, being where she was, with the knowledge and consent of the company, the duty of ordinary care.""We are clearly of the opinion that the degree of care was more than the duty of not wilfully injuring her, that the company owes her ordinary care, etc. "

This was said in a case wherein it was set up that the railroad had issued instructions against living in the cars and wherein it was shown that the little girl occupied no contractual relations with the defendant.

Now applying this case as a test and working it into the definition stated above from Cyc., how can it be plausibly asserted that this company, in this case, under the facts and circumstances surrounding Mobley's injury owed Mobley only the duty of not wilfully or wantonly injuring him?

The company in this case was charged with the knowledge that this coach was being used and occupied by these darkies as it was being used on this occasion.It had been so used for about two months.

Even gross negligence would have entitled plaintiff to recover even if he was a mere licensee.Yet none of the instructions of the defendant based upon the assumption that he was a licensee, referred to this kind of negligence as entitling plaintiff to recover under their theory.They, of course, were refused and even under the theory of the appellantthey were properly refused.

The supreme court of Mississippi has held time and time again that the instruction on the prima facie statute was proper even though a host of witnesses saw the accident.And this court just recently reversed a case because of the refusal of the court to grant an instruction upon the statute.And yet this is set up as one of the grounds for reversal.

Defendant's servants in charge of this train must have known, or should have known, that the darkies in this coach had had no supper.They must have known that it was the most reasonable thing in the world; the natural and expected thing for them to want their food.They are charged with the knowledge that they will very probably try and get something to eat or that they will alight from this car at Picayune.What is done by the servants of the company, under this imputation of knowledge?Nothing.No care is exercised by them.They just go ahead as if they had a carload of cattle attached to the engine or that whatever human was in the coach would not alight from the train.They acted on the assumption that these darkies would not do the expected or reasonable thing.And feeling that they owed this coach of negroes no duty whatsoever, except the duty graciously given by counsel, not to wilfully or wantonly injure them.

It was the natural thing for this little darkie to undertake to get something to eat.Even Mr. Bozeman assumed this because he thought that perhaps the appellee had gone to get a stalk of sugar cane.And Mr. Bozeman was not in as good position to know the habits of a little negro as the men who worked them and observed their daily habits.The case of R. R. Co. v. Stroud,64 Miss. 784, is not a parallel case at all.Stroud was not an employee but was a trespasser.He occupied no contractual relation with the railroad company.

The case of Mobile & Ohio v. Watley,69 Miss. 145, has no application to the case at bar.This was a little...