Wilson v. New Orleans & North Eastern R. R. Co

• Court: Mississippi Supreme Court
• Writing for the Court: CAMPBELL, J.
• Citation: Wilson v. New Orleans & North Eastern R. R. Co, 8 So. 330, 68 Miss. 9 (Miss. 1890)
• Decision Date: 10 November 1890
• Parties: G. D. WILSON v. NEW ORLEANS & NORTH EASTERN R. R. CO

8 So. 330

68 Miss. 9

G. D. WILSON v. NEW ORLEANS & NORTH EASTERN R. R. CO

Supreme Court of Mississippi

November 10, 1890

October 1890

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

The appellant, Wilson, was a passenger on a train of the appellee, going from New Orleans to Hattiesburg, Mississippi where he resided. He was accompanied by his little son seven years of age. He had been suffering from a wound on the head and was feeble, but he had been to New Orleans on business. He was on a fast train known as the "cannon ball," which only made two stops between New Orleans and Meridian Miss. When at Purvis, about seventeen miles south of Hattiesburg, he was informed by the conductor that the train would soon reach his destination. Soon after that he went to sleep. The train reached Hattiesburg about eight o'clock at night and stopped there fifteen or twenty minutes. Being asleep, he failed to get off. Soon after the train started the conductor came through and discovering that he was still on the train asked him why he had not gotten off at Hattiesburg. The appellant manifested surprise and asked where the train was. The conductor informed him, as he testified, that they were in the Hattiesburg yard. Thereupon appellant asked that the train be stopped, and that he be allowed to get off, and this was done. He then discovered that the train was about a mile from the station and had crossed the river, over which there was a long bridge. There was no way for him to return except to walk down the track and across this bridge. The train he was upon had passed a freight train which was on a side track at Hattiesburg, but he was not aware of this. When appellant was about the middle of the bridge, going south towards the station with his little son, he discovered this freight train approaching. Taking the child in his arms, he hastily retraced his steps in order to get off the bridge, which he barely did in time to escape being run over by the passing train. He was quite feeble and by reason of the great exertion and excitement caused by the effort to avoid being caught by the train, his health was injured and he was damaged. He sued the railroad on account of the same. In the declaration he alleged that he was wilfully deceived by the conductor as to the point where the train was when he was put off; that he was rudely awakened, and in an insulting manner forcibly ejected from the train in the dark.

The defendant pleaded the general issue.

On the trial the above facts substantially were proved, except that it was shown that there was no rudeness or force used by the conductor, and it was not shown that the plaintiff was wilfully deceived or misled as to the place where the train was, either at the time when he inquired of the conductor or when it was stopped. It was not claimed by counsel that it was incumbent on the conductor to awaken the plaintiff on reaching Hattiesburg. It was shown that the switches and side tracks extended for three or four hundred yards north of the station, and that the space covered by these was known as the yard limits. The plaintiff testified that the conductor told him that the train was in the yard, and that he supposed this to be true until after he had been put off the train, whereas the fact was that the train was much further north than was stated and was then in a swamp north of Leaf river, about a mile from the station. The conductor testified that he did not tell the plaintiff that they were in the yard, but merely said to him they were leaving Hattiesburg. He further testified that he did not intend to mislead or deceive the plaintiff in any way, and did not know that he was sick or feeble. The testimony for the defendant further tended to show that the conductor told the plaintiff that he would back the train to the station, or would carry him on to Meridian from whence he could return on the next train, or that he would stop there and allow the plaintiff to get off, and that the plaintiff consented to get off where the train then was. The plaintiff, however, testified that there was no offer to back the train, and that he was told that he must get off or that he would be carried on to Meridian, and that when he agreed to get off he supposed he was south of the bridge and within the yard limits.

The conductor testified that he was uneasy about the...