White v. Illinois Cent. Railroad Co.

• Decision Date: 19 June 1911
• Docket Number: 14,917
• Citation: 99 Miss. 651,55 So. 593
• Court: Mississippi Supreme Court
• Parties: MRS. ALICE WHITE v. ILLINOIS CENTRAL RAILROAD COMPANY

55 So. 593

99 Miss. 651

MRS. ALICE WHITE v. ILLINOIS CENTRAL RAILROAD COMPANY

No. 14,917

Supreme Court of Mississippi

June 19, 1911

APPEAL from the circuit court of Choctaw county, HON G. A. MCLEAN Judge.

Suit by Mrs. Alice White against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are sufficiently stated in the opinion of the court.

Affirmed.

Daniel & Adams, for appellant.

When appellant had concluded her evidence in the court below appellee made a motion for a peremptory instruction, which was granted by the court.

This case has been before this court on appeal by the railroad company from a judgment in favor of appellant, and was reversed because the evidence failed to show that the train on which appellant was riding, when she was injured, was intended for both passengers and freight (reported in 52 So 449); but appellant has quite a different record here on this point from that presented in the former appeal.

The evidence for appellant shows conclusively that the train in question was a mixed, local or accommodation train which has been running between Durant and Aberdeen for many years, and has all these years been used by the railroad company for handling local freight and passengers; that two of these accommodation trains of like character, are, and have been used for many years by appellee on its line between Durant, Mississippi, and Aberdeen, Mississippi, one going from Durant to Aberdeen and the other from Aberdeen to Durant each day, each train making the return trip on the day following; that each of the trains when making the run from Aberdeen to Durant is known as No. 291, and from Durant to Aberdeen as No. 292. On page forty-three of the record appears a copy of the bulletin board of appellee railroad company as posted at the depot in the town of Ackerman, as required by section 4857 of the Code of 1906. This bulletin board shows the said accommodation trains, Nos. 291 and 292, marked thereon in the same manner as the two regular passenger trains; and it was agreed that the train in question, No. 291, going south, was posted on the bulletin board at the time of the injury and has been tip to the present time. It further appears from this bulletin board that on the day of the trial, the said train was marked "On Time" on said bulletin board, in the same manner as the two regular passenger trains.

On motion of appellee, in which request appellant joined, the coach attached to said train No. 291 was examined and inspected by the jury, and considerable evidence was taken, while in and about the said coach, as to its construction, equipment, furnishings, etc. It was agreed that the coach examined was the same kind and character of car the appellant was riding in when she received the injury complained of. By further evidence taken in this connection, it was shown that the coach in question is about fifty feet long; that it was divided into three compartments, to-wit: a passenger compartment about twenty-nine and one-half feet long, including the end platform; a baggage compartment about twelve feet long with sliding doors on each side of the coach; and another compartment, six or seven feet long, in which. was kept tools and other equipment for the train crew. In the passenger compartment of the coach there was a heating stove, closet, water cooler, racks for bundles, etc.; cuspidors, etc.; and the seats were arranged and placed on either side of the coach with an aisle between, the seats being cushioned, reversible and large enough to accommodate two persons just as in a regular passenger coach, there being windows at each seat; and ventilators in the upper part of the coach (some open and others closed at the time); the interior of the passenger compartment being in all particulars like a regular passenger coach, except not as nicely finished and not as long, as stated by the witnesses; and there being at the time four regular passengers seated in the said passenger compartment. There was posted in said passenger compartment of said coach the following notice: "Ten dollars fine for spitting on the floor." It is evident that appellee, in providing cuspidors for said passenger compartment of said coach and in posting the said anti-spitting notice, was endeavoring to comply with section 4856 of the Code of 1906, which requires all railroad companies to furnish each passenger reception room and passenger coaches with a suitable number of cuspidors, and to post a notice in large bold type in a conspicuous place, "ten dollars fine for spitting on the floor." Also, the following very significant notice was posted on the door leading from the passenger compartment into the baggage room, to-wit: "Passengers not allowed in the baggage room."

Plaintiff introduced C. J. Dean, a photographer, who testified to having made certain photographs of the coach, attached to one of the said accommodation trains, two days before the trial, to the introduction of which photographs defendant objected, which objection was sustained by the court, and which action of the court we submit was erroneous. It is true these photographs were of no material benefit to plaintiff, as evidence before the jury, on this trial because the jury had made a personal inspection of the coach, which it was agreed was the same kind and character in which said plaintiff was riding when she was injured; but the same opportunity might not be available at another trial; and we think the photographs were sufficiently identified (as being photographs of the identical coach examined, or one of the same kind and character, and certainly as the coach attached to one of the said local trains, both of which coaches were shown to be of the same kind and character in construction, appearance, etc.) to make their introduction as evidence proper. At plaintiff's request, the said photographs were sent up with the record in this case, and they speak for themselves and show conclusively that the coach attached to said accommodation train was no common conductor's caboose (as was stated by the court in its former opinion from the uncontraditced evidence of the witness Magee); but that judging from the outside appearance of the coach, as shown by the said photographs, as well as from the interior construction, equipment, and furnishing of the said coach, as shown by the testimony of several witnesses, it was a coach intended for passengers. Plaintiff further offered in evidence a number of issues of several newspapers, some of which were excluded by the court to which exception was duly taken, which said several papers advertised the schedule of said railroad company on the line from Durant to Aberdeen, showing local trains Nos. 291 and 292 along with the regular passenger trains, and that all trains scheduled carried passengers.

Further evidence of the purpose and intention of the said local trains with reference to carrying passengers is shown by the evidence to the effect that said trains carried not only passengers, but also carried and had provisions, made for the carrying of passenger's baggage. It is shown by the testimony of the witnesses, who gave description of the coach, that there was a baggage room or compartment, with sliding doors on either side of the said coach into the said baggage compartment; and it was recognized by the railroad company as a baggage room by virtue of the notice on the door leading from the passenger compartment into the said room, to-wit: "Passengers not allowed in the baggage room." It conclusively appears that passenger's baggage was checked for this train and transported thereon in the same manner as on a regular passenger train. When plaintiff was making the journey from Kosciusko to Durant on said train at the time she was injured she had her trunk checked for transportation on said train.

It is further shown by the testimony of plaintiff's witnesses and herself that they had each and all frequently ridden on the said local trains Nos. 291 and 292; and that said trains were taken and considered by the said several witnesses and by the general public as trains intended for passengers, and that said trains have been used for many years by the said railroad company, and so considered by the public to be intended, for carrying and transporting passengers and their baggage, in the same manner as the regular passenger trains, with the exception that when it was equally convenient to take passage on the regular passenger trains, the witnesses did so on account of the fact that the trip could be made more rapidly and that better accommodations were provided on the regular passenger trains.

It is further in evidence that the said defendant railroad company runs other trains on its line between Durant and Aberdeen, in addition to the two regular passenger trains and the said local trains Nos. 291 and 292, which said other trains are strictly freight trains, with only the appliances of a freight train, having attached thereto a common conductor's caboose, which trains are used exclusively for carrying freight, and of course could not be said to be intended for passengers.

In the opinion rendered by the court in this case on its former appeal, 52 So. 449, the court cited the case of Perkins v. Chicago, St. Louis & New Orleans Railroad Co., 60 Miss. 726, wherein this court said: "A train is strictly a freight train, with only the appliances of such a train on which persons are not sought to take passage by the offer of other accommodations than are afforded by freight trains cannot be said to be intended for both passengers and freight, although all persons may become passengers by going into the conductor's caboose;" and we do not here question the correctness of the former ...