Richmond & D.R. Co. v. Burnsed

• Decision Date: 19 December 1892
• Citation: 12 So. 958,70 Miss. 437
• Parties: RICHMOND & DANVILLE RAILROAD CO. v. R. T. BURNSED
• Court: Mississippi Supreme Court

12 So. 958

70 Miss. 437

RICHMOND & DANVILLE RAILROAD CO. v. R. T. BURNSED

Supreme Court of Mississippi

December 19, 1892

FROM the circuit court of the first district of Carroll county HON. C. H. CAMPBELL, Judge.

Action by appellee, Burnsed, against the appellant company, to recover damages for personal injuries. He received the injuries complained of by leaping from a running freight-train of defendant to avoid an impending collision with a passenger-train. It is not contended, in behalf of the railroad company, that plaintiff's leaping from the train was not made necessary by the apparent imminent danger of the collision, this having been brought about in consequence of the absence of proper signals. The depot agent at Winona testified that he had displayed a red flag, the usual signal to prevent the freight-train passing his station, and that this was removed by some unknown party. The main contention between the parties is as to whether, at the time of the injury, plaintiff was a passenger.

The facts in evidence throwing light on this controverted question are, briefly stated, as follows: One Gresham, a dealer in mules, shipped from Winona to Greenwood, stations on defendant's railroad, two car-loads of mules. Burnsed the plaintiff, had agreed with Gresham to buy two of the mules, promising to give security that would be acceptable but they had signed no written contract, and plaintiff had paid nothing. The bill of lading for both car-loads of mules was made out in favor of Gresham, as the shipper, and consigned to him at Greenwood. As is usual in such contracts for the shipment of live-stock, it was stipulated that Gresham should have free transportation on the freight-train carrying the stock. Several of the mules belonged to the father-in-law of plaintiff, and plaintiff had these in charge, but the contract for the shipment was made entirely with Gresham. Plaintiff's name did not appear in the bill of lading, and he was not known to the agent of defendant in the transaction, but, in connection with one Neily, he assisted Gresham in loading the mules into the cars. When the freight-train, containing the loaded cars, left the depot at Winona, Gresham, Neily and the plaintiff, having been informed that the train would stop at a tank and crossing in another part of the town, overtook the train there, and entered the caboose. The conductor assisted them to enter remarking at the time, "I didn't know that you were all going with the stock; you liked to have gotten left." He then sat down, and was busily occupied writing, and made no other remark to them. Before reaching the first station, a passenger-train was discovered approaching on the same track. The brakes were applied to the freight-train, and all on board leaped from the train to escape the danger of the collision. The collision was averted, but plaintiff sustained severe injuries.

The conductor of the freight-train testified that, after leaving Winona, which was a junction point, he was busily occupied checking up way-bills; that, up to the time of the accident, he had not examined the bill of lading, and did not know that plaintiff and Neily were also claiming the right to free passage on the train; that, for this reason, he had not demanded their fare. It was shown in evidence that the rules of the defendant prohibited the carrying of passengers on freight-trains, except in cases where the shipper of livestock was given free transportation. It was further shown that, under the rules of defendant, free transportation was given to only one man, where the shipment of stock did not exceed two car-loads.

On the trial, the above facts having been developed, the court refused to grant a peremptory instruction in favor of the defendant. It instructed the jury that, under the evidence, plaintiff was not a passenger, but that if the jury believed from the evidence that the defendant was guilty of gross or wilful negligence, it was liable, although plaintiff was not a passenger.

It is not necessary to set out the other instructions given or refused. The plaintiff had verdict and judgment for $ 2,500. Motion for new trial overruled, and defendant appeals.

Reversed.

A. F. Fox, for appellant.

The peremptory instruction for defendant should have been granted. Plaintiff declared on a contract between the company and himself as a passenger in charge of stock owned by him. The declaration is not sustained. He owned no stock, was not a shipper and was not a passenger, or even a licensee. The defendant owed him no duty, and would be liable to him only for wilful wrong. Granting the negligence of defendant, causing the danger of collision, it is clear that there was no wilful or intentional injury. The court rightly charged that plaintiff was not a passenger. Freight conductors have no implied authority to invite strangers to become passengers. In the absence of express authority, their invitation cannot make strangers passengers. Patterson's Ry. Ac. Law, 299. When the conductor expressed surprise that all three were going, plaintiff made no reply, and thus, through his own fraud and deceit, was permitted to board the train. Plaintiff had no intention of paying his fare, and, as he was riding on a freight-train, in violation of the rules of the company, he cannot recover for injuries caused by mere negligence. This is true, even if the injured person is a licensee on the train. 153 Mass. 188; 47 Am. & Eng. R. R. Cases, 580; 2 Ib., 1; 51 Conn. 143; 93 Ala. 356; 91 Pa. 458.

The railroad company is not liable to passengers on freight-trains except for gross negligence. Certainly they are under no obligations to trespassers, except not to inflict on them wanton or wilful injury.

Southworth & Stevens, and Calhoon & Green, for appellee.

Appellee was not a trespasser. He had an interest in the stock. He was on the train by invitation of the conductor, and was rightfully in charge of the stock. He was asked for no fare. The remark of the conductor, as plaintiff entered the caboose, was apologetic for going off to the tank without him. Whether plaintiff was named in the bill of lading or not, the conductor treated him as owner of the stock, and recognized his right to be on the train. It is not known that plaintiff knew of any regulation limiting the number who could accompany a shipment of live-stock.

It cannot be denied that the agent at Winona was negligent in not keeping a watch over the signal-flag and keeping it exposed. In any aspect the company is liable for gross negligence. This is the theory upon which the case was tried. 2 Redfield on Railways, 235; 93 U.S. 291; 95 Ib., 635; 2 Beach on Railways, § 857; Patterson's Railway Ac. Law, § 210.

That plaintiff was not a trespasser but a passenger, see 4 Am. & Eng. Railroad Cases, 589; 2 Woods on Railroad Law, 1045; Beach on Railroads, § 857; 2 Redfield on Railways, 236; Patterson's Railway Ac. Law, 204; 14 How., 468; 12 Wall., 369.

That liability is fixed by wilful wrong alone, is in conflict with V. & M. R. R. Co. v. Phillips, 64 Miss. 693. We refer the court to the first refused instruction in that case. See also Railroad Co. v. Allbritton, 38 Miss. 242; Express Co. v. Brown, 67 Ib., 260.

Argued orally by A. F. Fox, for appellant, and W. F. Stevens, for appellee.

OPINION

WOODS, J.

The appellee's theory of the case, as disclosed in his declaration, is that he was a passenger on a freight-train by virtue of a contract of carriage of stock made with the appellant, under which he was entitled to free transportation because of his ownership of a part of the mules. The appellee's evidence...