Owens v. Yazoo & Mississippi Valley Railroad Co.

• Decision Date: 24 November 1908
• Parties: JENNIE OWENS v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

47 So. 518

94 Miss. 378

JENNIE OWENS v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

Supreme Court of Mississippi

November 24, 1908

October 1908

FROM the circuit court of Yazoo county, HON. WILEY H. POTTER Judge.

Jennie Neal Owens, an infant, suing by her mother as next friend appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment predicted of a peremptory instruction, in defendant's favor, the plaintiff appealed to the supreme court.

The opinion of the court state the facts.

Reversed.

M. B. Grace, for appellant.

The evidence shows that there was a general custom of the railroad company to furnish to extra gang foreman and their families camp cars properly fitted up for the purpose of being used as their homes. Of course the duty thereupon devolved upon the railroad company to furnish reasonably safe cars and appliances for such occupancy. This was read into every contract of employment and became a part of the contract when a section foreman would be ordered to take an extra gang to a place where there was no section house. Furthermore it was necessary that such cars should be kept in a reasonably safe condition as they were moved to and fro. Inasmuch as the families of the foremen live in such cars by invitation and consent of the railroad company, the company owes a duty of care and protection to the members of his family as well as to the foreman, in every case. White v. Louisville, etc., R. Co., 72 Miss. 12, 16 So. 248; Illinois, etc., R. Co. v. Woolley, 77 Miss. 297, 28 So. 26.

It has been held that one who boards a railroad freight train while it is being loaded, with the permission of the conductor, is not a trespasser or mere licensee and is not to be deemed guilty of contributory negligence by reason of so doing, unless he does so with knowledge that the conductor is exceeding his authority and violating the prescribed rules of the railroad company, in allowing him thus to board the train. Alabama, etc., R. Co. v. Yarbrough, 83 Ala. 238, 3 So. 447; Wagner v. Missouri, etc., R. Co., 97 Mo. 512, 10 S.W. 486; Young v. Pennsylvania etc., R. Co., 115 Pa. St. 112, 5 Cent. Rep. 848.

The railroad company was under a duty to furnish the appellant's father and family a reasonably safe place in which to reside, if it undertook at all to furnish a dwelling place. But in this case, the tracks were improperly constructed and in dangerous condition, and the conductor wilfully and maliciously refused to replace the cars, but, with an utter disregard of human life, allowed the engine and train to kick the cars and let them roll and stop where they would.

Inasmuch as the appellant was upon the cars by the acquiescence of the railroad company she was not a trespasser. As a child of tender years she was compelled to go wherever her father went. Alabama, etc., R. Co. v. Yarbough, supra; St. Joseph, etc., R. Co. v. Wheeler, 35 Kan. 185, 10 P. 461.

Appellant's suit is not based upon contract, but is a case in tort. She was not a licensee of the company. And the duty of the railroad company to use reasonable means to protect her was not complied with, hence the company is liable for negligence, since the negligent acts of its employees, other than her father, caused the injury. Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Stevens v. Yazoo, etc., R. Co., 81 Miss. 195, 32 So. 311.

Even if appellant's father had been guilty of negligence, this would not preclude appellant, an innocent person, from recovery. Westbrook v. Mobile, etc., R. Co., 66 Miss. 560, 6 So. 321; Vicksburg v. McLean, 67 Miss. 4, 6 So. 744.

Mayes & Longstreet, and C. N. Burch, for appellee.

No privity of contract existed between the appellant and appellee in any way imposing on the appellee the obligation of providing appellant, a nine year old girl, with all possible safeguards from injury in and about camp cars. Such cars are necessarily rude affairs, and cannot be provided with all conveniences.

The facts are uncontroverted that appellants's father and mother had used these cars for three weeks before the injury; that the cars were under the dominion and control of appellant's father; and that at no time had any complaint ever been made by appellant's parents to the appellee as to the insufficiency of any of the appliances of the cars.

The appellant was not a child below the years of discretion. She was between nine and ten years old, and appears to have been a bright and intelligent child. Under the circumstances she was a mere licensee, and it would be straining the law to say that under such circumstances the railroad company was bound to know that a child of her age was a member of the family and to take such precausion and to provide such safeguards in rough camp cars as would prevent any possibility of injury to her.

Suppose the child had fallen from one of the open side doors of the camp car, from which there can not well be permanent steps to the ground. Could it then be argued with effect that the railroad company was under obligation to provide safeguards across the door such as would prevent injury to a child of her age, or to provide permanent steps so safely and widely built as to afford the child safe and convenient modes of ingress and egrees?

As appellant was a mere licensee, the railroad company was not under positive and existing obligations to her except to refrain from wilful injury or from such acts of wilful recklessness, with full knowledge of her situation, as would cause her injury.

Even if it be said that appellant's father, the section foreman, has caused his wife and daughter to occupy the camp car with him, and therefore the wife and daughter were not trespassers, yet the fact remains that under the circumstances the wife and daughter would be mere licensees as to whom the appellee would owe only the duty to avoid wilful or intentional injury. Lovett v. Railroad Company, 79 S.W. 514.

It is shown that the mode of passage between the two cars was reasonably safe for a prudent and reasonable person, and that it could be used for the purposes for which it was provided. In fact, the evidence discloses that such mode of passage was the one in long and continued use generally between camp cars. The character of the passageway was obvious, and could easily have been seen by appellant. It had been used the very morning of the accident by the father and mother of appellant, and also by appellant herself. Under such circumstances, the court below properly awarded a peremptory instruction in favor of the appellee. Turner v. Railroad Co., 100 N.W. 268.

OPINION

WHITFIELD, C. J.

This action is by Jennie Owens, a minor, about nine years of age at the time of the injury, through her next friend, for $ 15,000 damages for an injury charged to have been negligently inflicted upon her by the appellee. At the conclusion of the testimony, the court, upon motion of appellee, excluded the testimony of the plaintiff, and gave a peremptory instruction for the defendant, and this is assigned for error. This case is a very delicately balanced one upon its facts, and therefore a careful statement of the case will be made.

The father of the plaintiff had been a section foreman. He was at the time of his injury the foreman of an extra gang. One difference between the two is that the section foreman is stationed at a particular place, and lives in an ordinary house with his family, whilst the foreman of an extra gang lives with his family in a set of cars known as "camp cars;" in other words, in a movable house which is taken hither and thither as the railroad company's needs may require. It is quite clearly shown that it was the practice and custom of appellee to furnish such camp cars, and to allow the family of the foreman to live with him in this movable house. The camp cars in question were composed of several box cars. One the foreman and his family used as a bedroom. The next they used as a dining room, and in the...