Wooten v. Mobile & O.R. Co.

• Decision Date: 08 April 1901
• Citation: 79 Miss. 26,29 So. 61
• Parties: ANN T. WOOTEN v. MOBILE & OHIO RAILROAD COMPANY
• Court: Mississippi Supreme Court

29 So. 61

79 Miss. 26

ANN T. WOOTEN v. MOBILE & OHIO RAILROAD COMPANY

Supreme Court of Mississippi

April 8, 1901

FROM the circuit court of Noxubee county. HON. GUION Q. HALL Judge.

Mrs Wooten, appellant, was the plaintiff in the court below; the railroad company, appellee, was defendant there. The suit was for the alleged wrongful death of plaintiff's husband who was killed by the defendant's cars. From a verdict and judgment, pursuant to a peremptory instruction in defendant's favor, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Hoke Smith, H. P. Peeples and Rives & Brooks, for appellant.

The court below seems to have believed that for one to board a moving train is per se negligence. It was formerly generally held negligence per se, but now that it is a question for the jury both as to alighting from and boarding a moving train. Buswell on Personal Injuries, 291. "The earlier cases in many instances recognize the principle of negligence per se in alighting from a moving train, but modern authority to a great extent has supplanted that doctrine with broader views upon the question." Carr v. Eel River R. R Co., 98 Cal. 366; s.c. 33 P. 213. In truth in but a very few of the states is the doctrine that it is per se negligence to either alight from or board a moving train still fully enforced.

Pennsylvania: Bacon v. Railroad Co., 21 A. 1002. Though this is opposed to the doctrine as held in Johnson v. West Chester, etc., R. R. Co., 70 Pa. 357; Crisse v. R. R. Co., 75 Pa. 83.

Louisiana: Weeks v. New Orleans, etc., R. R. Co. (40 La. Ann.), 5 So. 72. But in the case last cited plaintiff was struck, while attempting to board a moving train, not at the station, by a train on another track for which he ought to have looked and listened. See also Laboy v. R. R. Co., 36 F. 879; R. R. Co. v. Carter, 34 F. 92. These, too, were cases from Louisiana, and the decisions were made under the law of that state. In some of the states, it is held not per se negligence, but the courts have leaned towards extreme views as to what should be held negligent under the circumstances of the various cases.

Massachusetts: Morrell v. R. R. Co., 139 Mass. 238; S. C. 52 Am. Rep., 705; Dawson v. Boston, etc., R. R. Co., 156 Mass. 127; s.c. 30 N.E. 466; Harvey v. R. R., 116 Mass. 269. In the case last cited it was held that one who attempts to board a train while in motion is so wanting in ordinary care that he cannot, in the absence of any circumstances to excuse his act, maintain his action.

Michigan: Lake Shore v. Bangs, 47 Mich. 470. Negligence to jump from a moving train, where train ought to have stopped at station but did not. Train moving six miles per hour or more and the jump was merely to avoid inconvenience. But even in Michigan see: Cousins v. Lake Shore, 96 Mich. 386; s.c. 56 N.W. 14. Held, not in all cases per se negligence to attempt to alight from or board a moving train. "If one is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligent. In such cases it becomes a question for the jury." Citing many authorities, among them several Michigan cases.

New York: Solloman v. Manhattan R. R. Co., 27 A. & E. R. R. Cases, 155; 103 N.Y. 437. Deceased tried to board elevated train after it had started and was in the act of getting on when struck by a projection (permanent structure) from the station platform, and was killed. He was accustomed to take the train at this point every day and knew all the surroundings. Decision by three to two justices. Even in this case the court does not hold that it is always per se negligence to board a moving train. It says that it is generally so unless it appears that the passenger was, by the act of defendant, put to an election between alternative dangers, or that something was done or said, or some direction was given the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety. Paulitsch v. New York, etc., R. R. Co., 26 A. & E. R. R. Cases, 162. Belated passenger for elevated train. Held, contributory negligence under peculiar facts. Hunter v. R. R., 112 N.Y. 371; s.c. 8 Am. St. Rep., 752, and notes 757, 758; 128 N.Y. 18; 26 N.E. 958. Negligence under facts, but not always negligence per se to board moving train. Morrison v. R. R. Co., 56 N.Y. 302. Father attempted to alight from moving train with 12 year old child in arms. Even in this case, two justices dissented. But see: Distler v. Long Island R. R. Co., 45 N.E. 936; 151 N.Y. 424. Not per se negligence under all circumstances to board moving train. Citing and distinguishing Hunter v. R. R., supra, and stating that even that case recognized that it was not always negligence per se. Also, McAllan v. Trustees, 60 N.Y. 5, 176.

North Carolina: Brown v. R. & C. R. R. Co., 12 S.E. 958; 108 N.C. 34. Negligence to board moving train unless plaintiff shows that he did it without manifest risk to himself, or that the train did not stop long enough for him to board it while it was stationary. In this case plaintiff loitered about the station and had had ample time to get on.

Rhode Island: Chafee v. Old Colony, 24 A. 141. Negligence under facts. Deceased left train without notifying any one and loitered about. Train moving four to five miles an hour when he tried to get on.

Virginia: R. & D. R. R. Co. v. Picklesheimer, 89 Va. 389; 10 S.E. 44. Held, negligence to board moving car under peculiar circumstances of case. Rainy night, plaintiff encumbered with large valise and had had ample opportunity to get on.

In most of the states the question of contributory negligence is more strongly held to be for the jury.

Alabama: Not per se negligence to attempt to board moving train. Birmingham R. R. v. Clay, 19 So. 309; see also, 24 So. 392; 6 So. 696.

Arkansas: Little Rock, etc., R. R. Co. v. Atkins, 46 Ark. 423.

California: Carr v. Eel River R. R., 98 Cal. 366; 33 P. 213. Not per se negligence to jump from moving train. Question for jury. Also Jamison v. R. R. Co., 56 Cal. 593.

Georgia: Not negligence per se to attempt to alight from moving train. Question for jury. Covington v. R. R., 81 Ga. 273; Suber v. R. R., 96 Ga. 42.

Illinois: Chicago, etc., R. R. v. Mumford, 97 Ill. 560; Chicago, etc., R. R. Co. v. Bonnifield, 104 Ill. 223; Chicago, etc., R. R. Co. v. Bynum, 153 Ill. 131; 38 N.E. 578. In the last case plaintiff, a woman, undertook to alight from a moving train while encumbered with a valise.

Indiana: Louisville, etc., R. R. Co. v. Crunk, 119 Ind. 542; 12 Am. St. Rep., 443; 21 N.E. 31. Not per se negligence to alight voluntarily from moving train. All circumstances to be considered. R. R. Co. v. Duncan, 28 Ind. 441; R. R. Co. v. Hendricks, 41 Ind. 48; Penn. Co. v. Marion, 123 Ind. 415; 23 N.E. 973.

Iowa: McCorkle v. R. R. Co., 61 Iowa 555; 18 A. & E. R. R. Cases, 156. Not always per se negligence to board moving train, but negligence under facts. Plaintiff jumped off freight car at night while encumbered with lantern and prod pole. And see: Nickles v. R. R., 68 Ia. 732; Rayburn v. Ry., 74 Ia. 621; 31 A. & E. R. R. Cases, 45. In Iowa the statute prohibits a passenger boarding or jumping from a moving train. See last case cited.

Kansas: Warren v. Southern, etc., R. R., 31 A. & E. R. R. Cases, 10. Not always per se negligence to board moving train, but negligence under facts. Plaintiff attempted to jump and catch ladder on side of stock car. Atchison, etc., R. R. v Hughes, 40 Kan. 919. All circumstances to be considered.

Maryland: B. & O. R. R. Co. v. Kane, 69 Md. 11; 9 Am. St. Rep., 367. Not per se negligence, irrespective of rate of speed, all the circumstances must be considered. Should not be taken from jury unless contributory negligence be established by clear and uncontradicted testimony and presents some decisive act as to character and effect of which no room is left for ordinary minds to differ. In this case, the person by whom plaintiff was told to take the train was evidently not connected with the running of the train by which injury was caused. Cumberland V. R. Co. v. Mangans, 61 Md. 53; 10 Am. & Eng. R. R. Cases, 182 and notes, pages 187, 188. Not per se negligence. Passenger attempted to alight with valise in right hand, weighing fifteen to twenty pounds, and basket of provisions on left arm weighing eight to twelve pounds. Recovery sustained. N.Y. P. & W. R. R. v. Colbourn, 69 Md. 360; 9 Am. St. Rep., 430. Not per se negligence to jump from train moving five miles an hour.

Minnesota: Jones v. R. R., 42 Minn. 181; 43 N.W. 114. Question for jury.

Missouri: Fulks v. St. L., etc., R. R., 110 Mo. 335; 19 S.W. 818. Question for jury, citing many Missouri cases with others. Seigert v. R. R., 75 Mo. 475; 9 Am. & Eng. R. R. Cases, 322.

Nebraska: Union, etc., R. R. Co. v. Porter, 56 N.W. 808. Question for jury.

Texas Kansas, etc., R. R. v. Dorough, 10 S.W. 711. Not per se negligence. Question for jury. Train running 6 to 8 miles per hour. Plaintiff injured on it at flag station where train did not stop. Conductor told him to jump on. Also R. R. Co. v. Murphy, 46 Tex. 356; T. & P. R'y Co. v. Mayfield, 56 S.W. 942. Plaintiff undertook to get on train but could not; ran along with the train, trying to get on and stumbled and fell over oil bucket left on platform. Held, he could recover. Defendant, negligent in starting...