Dougherty v. Yazoo & Mississippi Valley Railroad

84 Miss. 502

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

We find no evidence in this record to sustain a verdict on any contention that, at the time of the sad accident to Mr. Dougherty, the railroad tracks were defective or out of repair, or that the train was running at a dangerous rate of speed. If there was such evidence, these matters were submitted to the jury, and their verdict is controlling in this case.

Mr. Dougherty was thrown from the train in trying to pass from one car to another, in the night time, while the train was running on a three-degree curve at a rate of speed of forty-five or fifty miles an hour. The misfortune arose from the swaying or lurching of the cars produced by the rapid movement on this curve. If the act of appellant in going from one car to another, under all the circumstances, was voluntary, we think it clear that the accident was the result of his own negligence, and that the law gives him no right to recover damages. If, however, his act was on the coercion of the company’s employes, or by their actual direction, the question of his negligence should have been left to the jury on all the evidence. Clearly, there was no coercion, and the only inquiry left is to see if there is such evidence of direction as would warrant the court in sustaining a verdict if returned for .plaintiff below on that. We do not find any such evidence. On the contrary, from the very frank and manly testimony of Mr. Dougherty himself, the conclusion is irresistible that his action was entirely voluntary. There was no order, no command, no coercion, no discourtesy. He himself, without demur, protest, or suggestion of delay until the train should stop, led the way; the Pullman car negro porter being behind him with the satchels, and his friend and companion bringing up the rear.

Affirmed.