Yazoo & Mississippi Valley Railroad Co. v. Grant

• Decision Date: 15 May 1905
• Citation: 38 So. 502,86 Miss. 565
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. ALEXANDER GRANT
• Court: Mississippi Supreme Court

38 So. 502

86 Miss. 565

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. ALEXANDER GRANT

Supreme Court of Mississippi

May 15, 1905

April 1905

FROM the circuit court of Warren county, HON. GEORGE ANDERSON Judge.

Grant the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

On the trial plaintiff testified, on the subject of his injuries that two ribs were broken, his hand, arm, and leg were cut, his back badly wrenched, his shoulder dislocated, and his arm broken, in the wreck of defendant's train; that he suffered great mental and physical pain, and for two weeks spit up blood; that he was, at the time of the wreck, doing a general mercantile business, and had no one to help him, and for about three months after the wreck his store was closed most of the time, as he was unable to do anything; that he paid considerable sums for medicine and doctor's bills; and that he still suffered from the effects of his injuries, and was in bed about three months. One Hicks testified that he was a physician and treated plaintiff for the injuries, and described the injuries substantially as plaintiff did, except he did not think any of plaintiff's ribs were broken. The opinion of the court contains a statement of such other facts as are necessary to understand the case.

Affirmed.

Mayes & Longstreet, and C. N. Burch, for appellant.

Plaintiff used the pass, knowing the stipulation on it, and he cannot now be heard, having enjoyed the benefit of it, to claim damages in the teeth of his contract. Northern R. R. Co. v. Adams, 192 U.S. 440 (24 S.Ct. 408; 48 L. ed., 513); Boering v. Chesapeake, etc., Co., 193 U.S. 442 (24 S.Ct. 515; 48 L.Ed. 742); Kinney v. Railroad Co., 32 N.J.L. 407 (90 Am. Dec., 675); Id., 34 N.J.L. 513 (3 Am. St. Rep., 265); Perkins v. Railroad Co., 24 N.Y. 196 (82 Am. Dec., 281); Wells v. R. R. Co., 24 N.Y. 181; Sutherland v. R. R. Co., 7 U. C. C. P., 409; Rogers v. S. S. Co., 86 Me. 261 (29 A. 1069; 25 L. R. A., 491); Payne v. R. R. Co., 157 Ind. 616 (62 N.E. 472; 56 L. R. A., 472). See note to Muldoon v. R. R. Co. (Wash.), 22 L. R. A., 794.

McLaurin & Thames, for appellee.

A common carrier cannot exempt itself, by special contract, from liability for tort or negligence, where it undertakes to transport passengers gratuitously on a pass. Illinois Cent. R. B. Co. v. Crudup, 63 Miss. 291; Prince v. I. & G. N. R. R. Co. , 64 Tex. 144; Mobile, etc., R. R. Co. v. Hopkins, 41 Ala. 489 (94 Am. Dec., 607); Ind. Cent. R. R. Co. v. Mundy, 21 Ind. 48 (83 Am. Dec. 339); Jacobus v. St. Paul, etc., R. R. Co., 20 Minn. 125 [Gil. 110] (18 Am. Dec., 360); Railroad Co. v. Butler, 57 Pa. 335; Railroad Co. v. Read, 37 Ill. 484 (87 Am. Dec., 260); Carroll v. M. P. R. R. Co., 88 Mo. 239 (57 Am. St. Rep., 382); Railroad Co. v. Selby, 47 Ind. 471 (17 Am. St. Rep., 719); Railroad Co. v. Bishop, 50 Ga. 465; G., C. & S. F. R. R. Co. v. McGowan, 65 Tex. 640; Railroad Co. v. Wier, 37 Mich. 115 (26 Am. St. Rep., 499); Sager v. R. R. Co., 31 Me. 228 (1 Am. St. Rep., 659); Maslin v. B. & O. R. R. Co., 14 W.Va. 180 (35 Am. St. Rep., 748); Cleveland R. R. Co. v. Curran, 19 Ohio St. 1 (2 Am. St. Rep., 362); Rose v. Des Moines, etc., R. R. Co., 39 Iowa 246; Lawson v. Chicago, etc., R. R. Co., 64 Wis. 447 (24 N.W. 618; 54 Am. St. Rep., 634); Louisville, etc., R. R. Co. v. Oden, 80 Ala. 38; Little Rock, etc., R. R. Co. v. Talbot, 39 Ark. 525.

A. J. McLaurin, on the same side, cited the following authorities:

I. C. R. R. v. Crudup, 63 Miss. 302; Prince v. I. G. N. R. R. Co., 64 Tex. 144; M. & O. R. R. Co. v. Hopkins, 41 Ala. 489 (94 Am. Dec., 607); I. C. R. R. Co. v. Mundy, 21 Ind. 48 (83 Am. Dec., 339); Jacobus v. St. Paul, etc., R. R. Co., 20 Minn. 125 [Gil. 110] (18 Am. Dec., 360); Railroad Co. v. Butler, 57 Pa. 335; I. C. R. R. Co. v. Read, 37 Ill. 484 (87 Am. Dec., 260); Carroll v. R. R. Co., 88 Mo. 239 (57 Am. St. Rep., 382); Railroad Co. v. Selby, 47 Ind. 471 (17 Am. St. Rep., 719); Railroad Co. v. Lockwood, 17 Wall., 357 (21 L.Ed. 627); Railroad Co. v. Bishop, 50 Ga. 465; Commissioners v. R. R. Co., 108 Mass. 7 (11 Am. St. Rep., 301); G., C. & S. F. R. R. v. McGowan, 65 Tex. 640; Railroad Co. v. Wier, 37 Mich. 111 (26 Am. St. Rep., 499); Sager v. R. R. Co., 31 Me. 228; Maslin v. B. & O. R. R. Co., 14 W.Va. 180 (35 Am. St. Rep., 748); Railroad Co. v. Curran, 19 Ohio St. 1 (2 Am. St. Rep., 362); Rose v. Des Moines R. R. Co., 39 Iowa 246; Lawson v. Chicago, etc., R. R. Co., 64 Wis. 447 (24 N.W. 618; 54 Am. St. Rep., 634); Little Rock, etc., R. R. Co. v. Talbot, 39 Ark. 525; Branch et al. v. Railroad Co., 88 N.C. 573.

OPINION

COX, J.

The decision of this case hinges upon the determination of the question whether the trial court erred in sustaining the objection of plaintiff, who is appellee here, to the introduction of a letter from plaintiff in words as follows--"Hardee, Miss. 3, 28, 1904. Major J. M. Kemp, Superintendent, Greenville, Miss.--Dear Sir: I have an occasion to go to Baton Rouge pretty soon, and I would appreciate a pass very much. Date it from April 2nd to 22nd. Respectfully, Alex. Grant, Agent"--and also to the introduction of a pass sent him in response to the above letter, styled, "Employe's Ticket, Pass check for Alex. Grant from Hardee, Miss. to Baton Rouge, La.," which provided that "the person accepting this ticket, in using the same, agrees not to hold the company liable for any damage to his person or property, under any circumstances whatever," and recited that "employe's passes must only be issued to employes of the Yazoo & Mississippi Valley Railroad Co., or of the railway mail service, and of the express, telegraph, news, and sleeping car companies which have regular contracts for service on the Yazoo & Mississippi Valley R. R."

Plaintiff in his declaration alleges that a train of defendant, on which he was a passenger, was wrecked by reason of the unsound and unsafe condition of defendant's roadbed, occasioned by rotten or defective crossties and a bad frog, and that plaintiff, in the said wreck, received certain severe injuries. The declaration charges that the said defective condition of its roadbed was known to defendant, or could have been by reasonable inquiry or inspection, and had been so for a long time, and that the defendant was willfully, recklessly, and capriciously negligent in the conduct and management of its business, to the great injury and damage of plaintiff. Defendant pleaded the general issue only, and did not give notice of affirmative matter in avoidance.

Under the pleadings the court could not do otherwise than exclude the letter and pass when offered in evidence. It is provided by Code 1892, § 686, that "if the defendant desire to prove under the general issue in an action any affirmative matter in avoidance, which by law may be proved under such plea, he shall give notice thereof in writing, annexed to or filed with the plea otherwise such matter shall not be allowed to be proved at the trial." While, as a rule, great liberality is allowed in pleading and procedure, this statute is mandatory, and must be strictly complied with. The effect of sec. 686 is to require every affirmative matter to be pleaded specially or given notice of, so as to distinctly inform the opposite party of the precise ground of contest on which he is to be met by his adversary. Tittle v. Bonner, 53 Miss. 578. The evidence offered and excluded had no tendency to disprove either the negligence of defendant or the resulting injuries of plaintiff. Its utmost and sole effect would have been to show a release of all claim for damages, which was an affirmative fact in avoidance. The exclusion of such...