Wells v. Alabama Great Southern Railroad Co

• Decision Date: 11 November 1889
• Citation: 67 Miss. 24,6 So. 737
• Court: Mississippi Supreme Court
• Parties: MARY WELLS v. ALABAMA GREAT SOUTHERN RAILROAD CO

6 So. 737

67 Miss. 24

MARY WELLS v. ALABAMA GREAT SOUTHERN RAILROAD CO

Supreme Court of Mississippi

November 11, 1889

October 1889

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

The appellant alleges in her complaint that she applied to defendant's ticket agent in Meridian to purchase a ticket to Russell's station, on the line of appellee's railroad, and that the agent refused to sell a ticket to that point; that her husband then applied to the policeman employed by the defendant at the Meridian depot for information and direction, and that said policeman directed him to put appellant on the train and that the conductor would put her off at Russell's station, and that she with her infant child accordingly boarded the train; that after leaving Meridian the conductor passed through the train and collected twenty-five cents, the full fare to Russell's station; that Russell's is a post-office and flag-station where appellant had frequently gone, and where the train had often stopped to put her off, and that defendant's trains were accustomed to stop there; that the conductor notwithstanding this, stopped his train when about three miles out from Meridian and put plaintiff, with her child and box, off at Wallaces, a place where the train was not accustomed to stop, against her protest, and in violation of her contract to be taken to Russell's; that it was dark when she was put off, and that Wallaces was a low, damp, and uninhabited place, and that she was, in consequence of such action, compelled to walk several miles to Russell's, and to carry her infant of about four months old, together with a box containing clothing, by means of the fatigue and exposure resulting from which plaintiff alleges that she was made sick and suffered great pain, and was permanently injured wherefore she sues.

The defendant pleaded not guilty, and evidence was introduced showing that both appellant and her husband, at different times, on the morning in question, applied to purchase a ticket, for appellant to Russell's station, and that on each occasion the ticket agent refused to sell her such ticket; that the railroad policeman showed her the train, and that she boarded it; that she paid her fare of twenty-five cents to the conductor, telling him she could not buy a ticket and so paid the fare, and that the conductor then told her the train was not going to stop at Russell's; that appellant asked what she should do, and the conductor replied that he would put her off at Wallaces; that she said she did not want to get off there, but could do so; that when Wallaces was reached, the train porter came to her and told her to come on, and carried out her box and took the baby down, and the train pulled away; that it was then about daylight, and she walked from that point to Russell's between two and three miles, carrying her child and box. There was evidence tending to show that by reason of this exertion, excitement, and fatigue, appellant received serious injury, which was likely to be permanent.

Appellant showed by one witness that he had before the date of this occurrence gotten on the train there at Russell's, but he stated that the train was not accustomed to stop there. Another witness testified that this train stopped there once last year; and another testified that while it was not accustomed to stop, it did stop when flagged, and that he had never known it not to stop, except on one occasion, when it was three hours late.

The defendant showed by two of its conductors, who managed the particular train in question, that Russell's was not a flag station, nor a stopping place, and had not been for several years; that there was no side-track there, and that no train was scheduled to stop there; that it would have been a violation of positive rules for any conductor in charge of the train in question to stop there, and that they had never stopped a train there; that this train was the local passenger train and was run to meet the fast train, the "cannon-ball," and that it had to make its schedule to meet that train which would pass at Toomsuba, the first regular station; that Wallaces was a flag-station, and that the train was allowed to halt there when necessary. The defendant showed by the two conductors that Toomsuba was the first station on defendant's line out of Meridian, a distance of twelve miles, and that the regular rate then was three cents per mile, but that no fare less than twenty-five cents, for any distance, was charged.

The conductor testified that when he told plaintiff he could not stop at Russell's, she requested him to put her off at Wallaces, but she testified that she did not assent to this voluntarily. The conductor further stated that plaintiff at first said she wanted to get off at McInnis's crossing. Plaintiff denied this.

What was said by the ticket agent and the policeman at Meridian was excluded by the court against appellant's objection.

A peremptory instruction to find for defendant was given and a verdict for defendant followed. From the judgment on this verdict an appeal was taken here.

Affirmed.

Witherspoon & Witherspoon, for appellant.

Counsel filed an elaborate argument, being in the main a review and discussion of the facts, in which the following points were made: --

1. The evidence establishes that there was a contract between the appellant and the railroad company by which the latter was to carry the former from Meridian to Russell's station. The ticket agent, being informed that she desired to go to Russell's, said he did not sell tickets to that station, and that she could pay her fare on the train. She then applied to the depot policeman, agent of appellee, for information about the trains, and told him she wanted to go to Russell's station. He showed her the train of appellee and told her when it would leave, and with her infant and box she took that. It was part of his duty to assist passengers on and off the trains of this road. This constituted a contract.

Then, when the conductor came for her ticket, appellant told him she desired to go to Russell's station, and he took the fare. After receiving it, and without offering to return the money, he informed her that he would have to put her off at Wallace's switch, against which she protested. If there was no contract before, this action of the conductor imposed the obligation on the company to put appellant off at her destination. It matters not if we concede that Russell's station was not a stopping place. The conductor had authority within reasonable bounds to relax the rules. 98 Am. Dec. 336. The action of the conductor in putting appellant off at Wallaces, alone and in the dark, was unnecessary and wholly inexcusable. The testimony of the conductor is unreasonable and contradictory. Especially is this true of his statement that appellant agreed to get off at Wallaces, and that she asked to be put off at McInnis's crosssing.

2. The testimony shows that Russell's is a station in the common and proper acceptation of the term. The trains frequently stopped there, and appellant herself had several times gotten on and off this very train prior to August 14, 1888. Others testified that they never knew the train to fail to stop when flagged. Whether in point of fact it was a station or not the...