Reid v. Yazoo & Mississippi Valley Railroad Co.
| Decision Date | 14 December 1908 |
| Docket Number | 13,290 |
| Parties | HENRY C. REED v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY |
| Court | Mississippi Supreme Court |
FROM the circuit court of, first district, Coahoma county, HON SAMUEL C. COOK, Judge.
Reed the appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court.
Appellant took passage on a caboose of a freight train of the appellee paying the regular fare required of him for transportation. Soon after boarding the caboose, he climbed up into the cupola, set apart for the use of the train crew, having a sign over the door leading into it prohibiting passengers from riding there. This sign appellant did not see, and notwithstanding the sign, the cupola was generally used by passengers, and the rule of the company prohibiting its use was generally disregarded. Appellant testified tat the conductor at no time entered the cupola, but passed through the caboose, saw appellant seated in the cupola, and made no objection. While appellant was seated in the cupola and the train was under way, the train separated, or broke into two sections. The front section approached a station, and stopped, when the rear section, which was moving at a rapid rate of speed, collided with it with such violence as to demolish many of the cars, and to derail the caboose in which appellant was riding, injuring not only appellant, but every other passenger and employe who was in the caboose at the time; some of the passengers riding in that part of the caboose set apart for passengers being injured as seriously as was appellant. Appellant had his leg broken, and suffered other injuries of a serious nature. He sued for damages; the railroad company pleaded the general issue, and gave notice thereunder that it would defend on the ground of contributory negligence on the part of appellant in entering the cupola contrary to the rules of the company. The case was submitted to a jury on instructions of the court and a verdict for defendant returned. Among other errors assigned by the appellant are the refusal by the court to grant the second instruction asked by him, and the granting of the seventeenth instruction asked by the railroad company. The opinion treats in detail the other errors assigned. The two instructions referred to are as follows:
Plaintiff's instruction No. 2. Refused. "The court instructs the jury that the 'contributory negligence' of the injured party will not shield a railroad company from liability for an injury inflicted upon a passenger by reason of negligence of the railroad's servants where their negligence is marked by gross or willful or reckless misconduct."
Defendant's instruction No. 17. Given. "If the jury believe from the evidence that the injury complained of resulted partly from the act of the plaintiff in voluntarily taking a seat and riding in the cupola of defendant company's caboose attached to the train on which he was a passenger, and partly due to the gross negligence of the defendant company or its employes, they must return a verdict in favor of the defendant."
Reversed.
O. G. Johnston, for appellant.
Counsel cited the following authorities: Ky. Cent. R. Co. v. Thomas, 79 Ky. 167, 42 Am. Rep. 208; Jacobus v. St. Paul, etc., R. Co., 20 Minn. 134, 18 Am. Rep. 360; Dickinson v. Railroad Co., 53 Mich. 44, 18 N.W. 553; 5 Am. & Eng. Ency. of Law (2d ed.), 648; Chicago, M. & St. P. R. Co. v. Lowell, 151 U.S. 209, 14 S.Ct. 281, 38 L.Ed. 131; Jones v. Chicago, etc., R. Co., 43 Minn. 279, 45 N.W. 444; N. Y., L. E. & W. R. Co. v. Ball, 53 N. J. Law, 286, 21 A. 1052; Sweetland v. Lynn, etc., R. Co., 177 Mass. 574, 59 N.E. 443, 51 L. R. A. 783.
Mayes & Longstreet, for appellee.
[The reporter has been unable to find the brief of counsel for the appellee, hence no part of its contents is given.]
So far as the alleged cross appeal and cross assignment of errors are concerned, it is sufficient to say that, never having been filed until after the submission of this cause, they came too late for our consideration.
It is evident that there is fatal error in the record in several respects. We notice only those we deem essential. And first it was error not to permit the witness Thompson to testify that the rule as alleged was unknown to the public generally and that as no such rule was ever enforced, as a matter of fact, the the public generally occupied the cupolas of these cabooses on freight trains at will with the full knowledge of trainmen and conductors of such trains (see White v. Railroad, 72 Miss. 12, 16 So. 248), and on this point the court refused instruction No. 9, asked by the appellant, which is as follows: "The court instructs the jury that the law recognizes the right of a railroad company to make and enforce reasonable rules, assigning to passengers the places in which passengers shall ride, but that a railroad company after making such a rule may waive or abandon it and...
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