St. Louis & San Francisco Railroad Co. v. Sanderson

• Decision Date: 13 March 1911
• Citation: 99 Miss. 148,54 So. 885
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD CO. ET AL. v. IDA SANDERSON ET AL
• Court: Mississippi Supreme Court

54 So. 885

99 Miss. 148

ST. LOUIS & SAN FRANCISCO RAILROAD CO. ET AL. v. IDA SANDERSON ET AL

Supreme Court of Mississippi

March 13, 1911

October 1910

APPEAL from the circuit court of Monroe county, HON. JOHN M MITCHELL, Judge.

Suit by Mrs. Ida Sanderson and others against the St. Louis & San Francisco Railroad Company et al. From a judgment for plaintiff against the railroad company, the company appeals and plaintiffs prosecute a cross appeal from the judgment in favor of the other defendant.

This is a suit by the appellees, the widow and children of one J. P Sanderson, for damages for killing of Sanderson by the conductor, Willis, in charge of a passenger train of the appellant railroad company. The record discloses the fact that Sanderson, in company with a young man named Pennington, got upon the platform of a passenger train of appellant about ten o'clock at night, intending to ride from Amory to Aberdeen Junction, a distance of one mile. The fare was five cents. The conductor did not see these two parties on the platform, nor did they offer to pay fares, though Pennington says that they were ready and willing to pay same and expected to do so when the conductor should ask them. The conductor testified that he did not, as a rule, work the train between these two points, but that he occasionally collected fares from persons traveling that distance, and that he did not see the deceased and his companion, nor did he know that they were on the train that night. When the train reached Aberdeen Junction, deceased and his companion got off on the side of the car, and the conductor and two of the passengers stepped off, when the conductor borrowed a pistol from one of the passengers and fired, killing Sanderson. The defense is that he did not shoot at Sanderson, and did not know he was in that direction, and that the killing was purely accidental. This question, however, was submitted to the jury; it being the theory of the appellees that the killing was not an accident, or that at least the conductor was guilty of gross, wanton negligence in firing the pistol. Suit was brought against the railroad company and the conductor, and the jury returned a verdict for ten thousand dollars against the railroad company, from which this appeal comes.

Affirmed.

E. O. Sykes, Jr., for appellant.

We contend that the testimony showed that deceased was not a passenger at the time of his death, and, in fact, had not been a passenger on the Memphis-Aberdeen train that night. That since he was not a passenger, the act of the conductor, when he shot and killed Sanderson, was totally beyond the scope of his employment and authority, and entirely disconnected from any of his duties due his master. For which act the appellant was not liable.

The learned trial judge held that unless Sanderson was a passenger at the time of his death, plaintiff could not recover, but held that the question of carrier and passenger was one to be decided by the jury. We submit that the relation of carrier and passenger never existed between the appellant and deceased. A common carrier of passengers holds itself out as being in the business of carrying passengers from one place to another for hire, upon the intending passenger's performance of certain conditions, and his submission to certain reasonable regulations established by the carrier. The relation of carrier and passenger necessarily arises from contract, either express or implied. The intending passenger must offer himself as a passenger, and the carrier must accept him as a passenger, before the relation exists. It is not essential that the passenger have a ticket, neither does the fact of his having a ticket conclusively show him to be a passenger.

The acceptance by the carrier may be either express or implied, but there must be an acceptance.

Since the carrier owes a very high degree of care to the passenger to carry him safely, or as our court has expressed it in the case of Railroad Co. v. Humphrey, 83 Miss. 733, it owes the passenger the "duty of exercising the utmost care and diligence," it must also be true that the passenger must have complied with all the reasonable rules and regulations of the carrier as a passenger, and have been accepted as a passenger, before the relation begins. The passenger must have placed himself in the care of the carrier or directly within its control, with the bona fide intention of becoming a passenger, and must have been accepted as such by the carrier. In this case we do not have to resort to any presumptions or surmises, for we have the testimony of the companion of Mr. Sanderson who was with him from the time he boarded the train at the depot in Amory until he was killed.

Charge No. 9 makes the appellant an insurer of the safety of its passengers from injury from all sources, which is not the law as shown by the following authorities. 3 Thompson on Negligence, § 2721; Railroad v. Jopes (U. S.), 142 U.S. p. 28, 35 Law Ed., p. 919.

The court erred in not entering a judgment for appellant based upon the verdict of the jury. These three assignments will be considered together.

This suit was filed against this appellant, T. P. Willis, and the Kansas City, Memphis & Birmingham Railroad Company as defendants.

This suit is based upon the negligence of Willis, the conductor, in shooting his pistol, and the appellant is held liable on the doctrine of "respondeat superior." There can be no contention that the master authorized or actively participated in the firing of the pistol. The verdict of the jury found for the plaintiff against the St. Louis & San Francisco Railroad Company in the sum of ten thousand dollars.

The verdict finds in favor of the defendant Willis, with the same force and effect that it finds against the appellant. It says as to Willis: We find that your conduct was lawful, and that deceased was not killed either willfully or negligently by you, but that he was killed as a result of an accident pure and simple, for which you are in no way responsible.

The same verdict says as to the appellant: We find against you because Sanderson was a passenger at the time he was killed, and you owed him the duty not to negligently injure him, and that you violated this duty when your conductor or agent shot him, which was a negligent act of your agent for which you, as the master, are responsible.

That the verdict was in favor of Willis is well settled by the following authorities: Railroad Co. v. James (Texas), 10 S.W. 744; Milling Co. v. Abernathy, 35 N.E. 399; Doremus v. Railroad Co., 54 L. R. A. (Wash.) 649; Railroad Co. v. Clarke, 85 Miss. 651.

If the appellant and Willis were joint tortfeasors in the killing, then we would have no right to complain of this verdict, but to be joint tortfeasors, the parties must all actively, in person, participate in the wrong, and the master could only participate in it by authorizing the wrong to be done. Each tortfeasor is himself guilty of a wrong towards the injured independent of the wrong committed by the other tortfeasors. Neither can there be any right of contribution among them, for all of them are in pari delicto. This is in no way true in this case. If deceased were a passenger and was negligently killed by Willis, then appellant is liable in this case technically in trespass upon the case, and Willis would be liable in trespass. It is impossible for appellant, however, to be liable and Willis not liable. Yet Willis could be liable for the killing and appellant not liable. As for instance, if Sanderson were not a passenger, and was negligently or intentionally shot by Willis.

This verdict in acquitting the active participant of any negligence, and yet in holding his principal liable, is contrary to the law and the evidence, and shows upon its face that it is the result of prejudice and passion against this appellant. We know of only one authority which apparently seems to uphold such a verdict, and that is in this state. The case of Railroad Co. v. Clarke, 85 Miss. 691.

It is possible that the facts of that case and these are so different that they may be distinguished. If the act causing the injury in that case was one of nonfeasance of the engineer, the company would be liable and the engineer not. The acts complained of in the Clarke case were further part of the ordinary duties of the engineer, in the running of his train, for which the master is made liable to the public, to strangers. We could not be made liable to the public or to any stranger for the unauthorized shooting of Willis. The opinion in the Clarke case assumes that the engineer and railroad company were equally liable, in other words, if the engineer be liable in any phase of the case, then the railroad is liable. But in our case the appellant would not be liable unless deceased were a passenger, though Willis might.

We now invite the attention of the court to some of the authorities which sustain our views about this verdict. In the case of Railroad v. Jopes, a Mississippi case reported 142 U.S. p. 28, 35 Law Ed. 919; Doremus v. Root et al., 23 Wash. 710, 54 L. R. A. 649; Gulf C. & S. Fe R. Co. v. James, 75 Tex. 12, 10 S.W. 744; Howard v. Jackson, 91 Ga. 319, 18 S.E. 132; Kinkler v. Junica, 84 Tex. 120, 19 S.W. 359; Gulf C. & S. Fe R. Co. v. James, 75 Tex. 12, 10 S.W. 744; June v. Grimmett, 4 W.Va. 104; Westfield Gas & Mill Co. v. Abernathy, 8 Ind.App. 73, 35 N.E. 399; Hayes Admx. v. Telephone Co., 218 Ill. 414, 2 L. R. A. (N. S.) 764; Stevick v. N. P. R. R. Co., 39 Wash. 506, 81 P. 1001; McGinnis v. Railroad Co. (200 Mo.), 9 L. R. A. (N. S.) 880.

Leftwich & Tubb, for appellee.

This was a passenger train calling for passengers at every station, throwing open its doors to receive them, and they are as a matter of law...