Opinion
No. 31881.
November 4, 1935.
1. RAILROADS.
Proximate cause of injury sustained by party attempting to board moving freight train held to have been his own negligence, notwithstanding his attempt was at invitation of railroad's special agent and conductor.
2. RAILROADS.
That conductor and special agent of railroad had invited party to board moving freight train held not to render railroad liable to party for injuries sustained in attempting to board such train, since extending of invitation was not in discharge of any duty owed by special agent and conductor to party, and imposed upon railroad, at most, duty not to wantonly or willfully injure him.
APPEAL from the circuit court of Amite county; HON. R.E. BENNETT, Judge.
E.C. Craig, of Chicago, Ill., Burch, Minor McKay, of Memphis, Tenn., and E.H. Ratcliff, of Natchez, for appellant.
We direct the attention of the court to the question as to whether the employees of the defendant had any authority to invite or allow plaintiff to ride free on their train. We contend that they were without any such authority and, in so doing, were acting outside the scope of their employment and were not only violating the rules of the defendant company but were violating the laws of the state. Section 6141 of the Code of 1930 specifically prohibits the granting of such privilege or transporting, or allowing persons to be transported, free or at reduced rates, with certain exceptions mentioned in the statute, and plaintiff did not come within any of the exceptions.
Sections 1111 and 6141, Code of 1930; Illinois, etc., R. Co. v. Messina, 240 U.S. 395, 60 L.Ed. 709; E.L. Young Heading Co. v. Payne, 127 Miss. 48, 89 So. 782; G. S.I.R.R. Co. v. Still, 169 Miss. 69, 152 So. 824; Burks v. Y. M.V.R.R. Co., 153 Miss. 428; Railroad Co. v. Messina, 109 Miss. 143, 153; Howell v. Railroad Co., 75 Miss. 242; Clarke v. Railroad, 286 Fed. 915; Yazoo Miss. Valley R.R. Co. v. Green, 147 So. 333; Bufkin v. L. N.R.R. Co., 137 Miss. 577.
J.T. Lowrey and F.A. Anderson, Jr., both of Gloster, and C.T. Gordon, of Liberty, for appellee.
We direct the court's attention to the question that the plaintiff was not a wilful trespasser on the train at the time he received his injuries. It is undisputed in the record that he had been invited to ride by the employees in charge of the train, and that he relied on their invitation, honestly believing that he had a right to ride the train in good faith. The defendant does not dispute these facts, and not a single witness was introduced by the defendant to contradict these statements. His case is quite different on the facts to that of a wilful trespasser, wrongfully on the defendant's train.
A. V.R.R. Co. v. Livingston, 84 Miss. 1; 52 C.J., page 549, sec. 2121 (3).
We submit that under the facts contained in this record the plaintiff was not a wilful trespasser in trying to catch the train at the time he received his injuries.
It was the duty of the railroad company after the plaintiff had been invited to ride the train by its employees in an intoxicated condition, to use due care in preventing injury befalling him. The conductor and special agent had been drinking with him and knew that he was intoxicated, and knew that he was in that condition when they invited him to ride the train with them.
52 C.J., secs. 2162 (6), 609; St. Louis, etc., R. Co. v. Spicer, 187 Ky. 601, 219 S.W. 1047; Jones v. Chicago, etc., R. Co., 162 La. 690, 111 So. 62; Friemonth v. Kansas City, etc., R. Co., 180 S.W. 1063; Brown v. North Carolina R. Co., 172 N.C. 604, 90 S.E. 783; Key v. Charleston, etc., R. Co., 144 S.C. 164, 142 S.E. 336; San Antonio, etc., R. Co. v. Jaramilla, 180 S.W. 1126-27; Cincinnati, etc., R. Co. v. Marrs, 70 L.R.A. 291, 63 S.W. 580.
The railroad company while under no obligation to carry the plaintiff to Stephenson (Crosby) yet when through its agents and servants it took him in charge to carry him it owed him the duty to protect him and not permit the visitation of injury on him, and that failure to so protect him, or the discontinuance of its aid in protecting him from injury would render the company liable for any damage sustained by the plaintiff in its failure to protect him from injury.
2 Restatement of the Law of Torts, sec. 324.
Even though the plaintiff was a trespasser at the time he received his injuries, and, if a wilful trespasser, which we contend that he is not, the record in this case reveals that the railroad company did not use the proper care to avoid injuring plaintiff after his peril was discovered at Stephenson by the employees of the appellant, and this is made more manifest by reason of the fact of the action of the employees in inviting him on the train and produced his injury.
E.L. Fuller et al. v. I.C.R.R. Co., 100 Miss. 705; I.C.R.R. Co. v. Ash, 128 Miss. 410.
There is ample evidence of negligence on the part of the railroad company through it employees to carry this case to the jury on the facts, and that the court below did not err in submitting the questions of fact showing negligence of the appellant to the decision of the jury.
Railroad Company v. Messina, 109 Miss. 147; Hinds et al. v. Moore et al., 124 Miss. 500; Sections 511 and 512, Code of 1930.
Argued orally by E.R. Ratcliff, for appellant, and by J.T. Lowrey, for appellee.
This is an appeal from a judgment for damages caused by a personal injury to the appellee, and the appellant's complaint is that the court below erred in not directing the jury to return a verdict for it.
The appellant's railroad runs north and south through a portion of Amite county, passing through the town of Gloster and a village named Crosby, north of it. This village, on the occasion in question, was known as Stephenson, and we will herein so designate it.
While one of the appellant's freight trains was passing through Gloster, at a speed of between ten and fifteen miles an hour, the appellee attempted to board its caboose, but fell while so doing and was injured. He was not a passenger on the train; had purchased no ticket for that purpose; and did not intend to pay for riding thereon.
From this it appears that the proximate cause of the appellee's injury was his own negligence in attempting to board a moving train. Howell v. Illinois C.R. Co., 75 Miss. 242, 21 So. 746, 36 L.R.A. 545.
Appellee says, however, that, notwithstanding this, the appellant should pay him for his injury. In support of this contention, his evidence discloses that while the train was at Gloster he met a special agent who was accompanying the train for the purpose of preventing trespassers from riding thereon. This special agent introduced the appellee to the conductor; the three took two drinks of whisky, and the special agent and the conductor invited the appellee to go with them on the train, which was then proceeding north, until it should meet a southbound train on which he could return to Gloster. The train started before the appellee boarded it, but, with the consent of the conductor and the special agent, he caught and boarded a tank car therein, which was several cars ahead of the caboose. When the train reached Stephenson, he left the tank car and proceeded to the rear of the train for the purpose of boarding the caboose, but the train started before he could do so. The special agent and the conductor, who were in the caboose, saw him and invited him to board the moving train.
He says that although he would not have been, technically, a passenger had he succeeded in boarding the train, but would have been a trespasser thereon, nevertheless he would not have been a willful trespasser because of the invitation extended to him by the conductor and special agent to board it, and, therefore, its servants owed him the duty not to willfully or wantonly injure him.
The negligence claimed, which the appellee says was willful and wanton, was in the invitation extended him to board the moving train. The extending of this invitation may have been grossly negligent, but it was not extended in the discharge of any duty owed by the special agent and the conductor to the appellee, but was wholly without the scope of their employment. The acceptance of the invitation rested wholly with the appellee, and, at most, imposed upon the appellant, through its servants, the duty not to wantonly or willfully injure him while he was attempting to board the train.
But it is said by the appellee that the special agent and the conductor knew that he had been drinking, and therefore the duty devolved upon the appellant, through them, to exercise care commensurate with his drunken condition, to prevent him from being injured by the operation of appellant's train, and the extension of the invitation to board it in his drunken condition was a gross violation of that duty.
We are not here called upon to determine the merits of this contention, if the facts on which it is based were true. It is clear that the appellee was not intoxicated. He, himself, says that he was not, but that he did feel the effects of his two drinks of whisky. He said he was fully conscious of the situation, knew what he was doing, and that it was dangerous to attempt to board a moving train, but that he "took a chance to catch it."
The court below should have directed a verdict for the appellant.
We have left out of view section 1111, Code of 1930, which makes jumping on or off a moving railroad train a criminal offense.
Reversed, and judgment here for the appellant.