Teche Lines, Inc. v. Britt

• Citation: 170 So. 294,176 Miss. 681
• Decision Date: 02 November 1936
• Docket Number: 32310
• Court: United States State Supreme Court of Mississippi
• Parties: TECHE LINES, INC., v. BRITT

170 So. 294

176 Miss. 681

TECHE LINES, INC., v. BRITT

No. 32310

Supreme Court of Mississippi

November 2, 1936

Division A

Suggestion Of Error Overruled November 16, 1936.

APPEAL from the circuit court of Forrest county HON. W. J. PACK, Judge.

Action by Mrs. J. M. Britt against the Teche Lines, Incorporated. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Stevens & Currie, of Hattiesburg, and Porteous, Johnson & Humphrey, of New Orleans, La., for appellant.

The first instruction, we submit, is erroneous.

This instruction virtually makes the defendant an absolute insurer, and a guarantor of safe transportation of the plaintiff to Hattiesburg. It undertakes to say that it was the duty of the defendant to exercise the very highest degree of care, which we submit is too strong a statement of the rule with respect to transportation of passengers. But it does not stop with that enlargement of the law, but goes further, and is so worded as to impel the belief on the part of the jury that the very highest degree of care would result in the safe transportation of the plaintiff. The instruction states that it was the duty of the defendant to exercise the highest degree of care to safely transport plaintiff, thus making it the absolute duty of the defendant safely to transport the plaintiff.

A carrier of passengers is not a guarantor or insurer.

10 C. J., page 863, sec. 1302, and page 860, sec. 1299 (d), and page 867.

The second instruction is erroneous. It seems to presume that Hinton, at New Augusta, informed the bus driver that the road was impassable. Even the testimony of the plaintiff is not that strong. It merely shows that water was rising, and that somebody told the bus driver about another route, by way of Richton. This instruction also submits to the jury the question as to whether "the defendant wantonly or carelessly refused, failed or neglected to do all that was reasonably possible for a good motor bus driver to do for the safety and comfort of his passengers." This instruction, by use of the word "wantonly" submits the question of punitive damages to the jury erroneously, and it puts upon the defendant the burden of doing all that was reasonably possible for a good motor bus driver to do. We submit no such rule exists. The test is not a good motor bus driver, or the exhaustion of possibilities, reasonable or unreasonable, but it is the degree of care commensurate with the circumstances.

Missie Picklesimer v. Louisville & Nashville Ry. Co., 194 N.C. 40, 52 A. L. R. 1330; 8 R. C. L. 586; 2 R. C. L. Supp. 632; 4 R. C. L. Supp. 564; 5 R. C. L. Supp. 478; 6 R. C. L. Supp. 518.

In the present case there is no circumstance of aggravation occasioned by wilfulness, malice, wantonness, rudeness or oppression, nor was there any reckless or wanton disregard of plaintiff's rights.

Tripp v. American Tobacco Co., 193 N.C. 614, 137 S.E. 871; 56 A. L. R. 1333; A. & V. Ry. v. Purnell, 69 Miss. 652, 13 So. 472; Railroad Co. v. Scurr, 59 Miss. 456; I. C. R. R. Co. v. Pearson, 31 So. 435.

We submit there is manifest error in the instruction which is as follows. "The court instructs the jury for the plaintiff that when the motor bus became stranded it was the duty of the operator of said bus to get busy and relieve the situation and if you believe from the evidence that the driver of said motor bus could have reasonably relieved the situation so as to save the plaintiff from remaining in the bus at the water all night and until the afternoon of the next day, the defendant was guilty of negligence."

This instruction tells the jury that "when the motor bus became stranded it was the duty of the operator of said bus to get busy and relieve the situation." The instruction does not say how the motor bus driver should get busy, or what he should do under the circumstances. Use of these words means that in the mind of the court, the motor bus driver should have done something actively that he did not do. lit virtually amounts to charging the jury that it was the duty of the defendant to leave the plaintiff, an unprotected woman, with a strange passenger on the bus at midnight. The instruction ignores what the bus driver did. The instruction should at least be definite enough to let the defendant, as well as the jury, know wherein consisted the alleged failure to exercise care, but it states the omission of no duty.

We submit that the following instruction was fatally erroneous: "The court instructs the jury for the plaintiff, that it was the duty of the defendant to equip its motor bus with a tail light."

The testimony repeatedly shows that the motor bus was equipped with tail light such as is usual and ordinary on motor vehicles. Evidently, the purpose of this instruction, and its construction by the jury, is that it was the duty of the defendant to have its bus equipped with so bright a tail light as to amount to a head light, by which the driver of the bus could see to travel backwards. Otherwise, the instruction is misleading and is error. If the bus had a tail light, there is no purpose in instructing the jury for the plaintiff that it was the duty of the defendant to equip its motor bus with a tail light. Undoubtedly, this instruction gave the jury to understand that the tail light should be bright enough to be used for backing any distance, and such, we submit, is not required. The statutes in Mississippi make no such requirement. The purpose of a tail light is to warn travelers who are approaching, and not for driving purposes.

The alleged dangers to the plaintiff were not within the control of the defendant, and they did not constitute usual and ordinary risks of transportation, and such as were within the contemplation of the defendant.

10 C. J. 861.

We submit that if the bus were stranded at the water, it was not the duty of the defendant to exercise the very highest degree of care not to expose plaintiff to danger or suffering, because if the bus was stranded, the plaintiff was no longer being transported. A high degree of care applies only when the passenger is being transported, or when the presence of the passenger is reasonably connected with transportation, but where outside agencies intervene, for which the carrier is not liable, only ordinary care is required.

10 C. J. 909.

We submit that the entire record shows no actionable negligence on the part of the defendant, and no compensatory damages on the part of the plaintiff. The carrier of passengers is not an insurer as to the time of arrival or departure, and for unforeseen delays there is no liability.

Missie Picklesimer v. Louisville & Nashville Ry. Co., 52 A. L. B. 1334.

The carrier is not a warrantor of speed, and only ordinary care and skill are required to run according to schedule.

Gordon v. Manchester & L. R. Co., 52 N.H. 596, 13 Am. Rep. 97; Latour v. Southern Ry., 71 S.C. 532, 51 S.E. 265; Fitzgerald v. Midland Ry. Co., 34 L. T. (N. S.) 771.

Under the circumstances of this case, we submit there was no duty on the defendant to furnish additional means of conveyance.

Southern Ry. Co. v. Miller, 129 Ky. 98, 110 S.W. 351; Arkansas C. R. Co. v. Janson, 90 Ark. 494, 119 S.W. 648; Cormack v. New York, N. H. & H. R. Co., 196 N.Y. 442, 24 L. R. A. (N. S.) 1209; Compton v. Long Island Ry. Co., 1 N.Y.S. 554.

This court has many times held that there can be no recovery of actual damages for annoyance, worry or mental anguish disconnected from physical suffering.

G. & S. I. R. R. Co. v. Beard, 129 Miss. 834, 95 So. 357; Grenada Bank v. Lester, 126 Miss. 442, 89 So. 2; Western Union v. Rogers, 68 Miss. 748; Miss. Power Co. v. Byrd, 133 So. 193; Miss. Power Co. v. Harper, 145 So. 887; Ozen v. Sperier, 117 So. 117, 150 Miss. 458.

Paul B. Johnson, of Hattiesburg, for appellee.

The law as applicable to railroad common carriers is applicable to common carriers by motor bus. Each and all are held to the highest degree of care in transporting passengers. Counsel for appellant takes issue with the court and boldly states that common carriers of passengers for hire are not held to the highest degree of care, but we respectfully submit that counsel has been unable to find one single authority to support his contention.

Birmingham Ry., Light & Power Co. v. Gray, 71 So. 689; Ala. G. S. R. Co. v. Hill, 9 So. 722; Montgomery & E. Ry. v. Mallete, 9 So. 363.

A carrier of passengers is bound to exercise the highest degree of care to avoid injury to those whom he undertakes to carry as passengers, and for injuries resulting from a failure of duty in this regard the carrier is liable; and this rule applies without regard to the vehicle used for conveyance.

Southern Ry. v. Crowder, 30 So. 592; Louisville & N. R. Co. v. Mulder, 42 So. 742, 149 Ala. 676; Southern Ry. v. Cunningham, 44 So. 658, 152 Ala. 147; Culberson v. Empire Coal Co., 47 So. 237.

A carrier owes the duty to a passenger to provide a safe place for him to ride, to see that he is treated with respect by its servants, and not to expose him to unnecessary peril.

Carleton v. Central of Georgia Ry., 46 So. 495; Louisville & N. R. Co. v. Glasgow, 60 So. 103; Alabama City G. & A. Ry. v. Bessiere, 66 So. 805; Seaboard Air Line Ry. v. Mobley, 69 So. 614.

It is the duty of a common carrier of passengers to take the greatest care to conserve the safety of a passenger and to make his journey safe from harm and insult, and for failure to observe such duty, proximately resulting in injury, the carrier is liable.

Nashville C. & St. L. Ry. v. Crosby, 70 So. 7, 194 Ala. 338; Central of Georgia R. Co. v. Robertson, 83 So. 102 203 Ala. 358; Hall v. Seaboard Air Line Ry. Co., 93 So. 151; Louisville & N. R. Co. v. Compiretto, 102 So. 837,...