Illinois Central Railroad v. Massey

53 So. 385, 97 Miss. 794

• Court: Mississippi Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

McLain, O.

This is an appeal by the appellant railroad company from a judgment for $5,000, rendered against it in the circuit court of Tate county in favor of the appellee, for injuries sustained by him in stepping off of a train of appellant company while it was in motion. The controlling question involved in this cause is: Did the trial court commit error in refusing the peremptory instruction asked by appellant ?

Before passing upon the question, it is necessary for us to surround ourselves with the leading facts. The plaintiff below was a young man, between twenty-one and twenty-two years of age, living on a farm some eight or nine miles west of Ooldwater. On the morning preceding the evening on which the injury complained of was committed, he and Mr. A. TI. Hurt, an uncle, took passage at Ooldwater, on defendant’s south-bound train, for Batesville. ’ That evening they boarded at Batesville defendant’s north-bound train on return trip to Ooldwater, taking seats in the smoking compartment, which was'the rear half of' the middle coach on the train. As the train approached Cold-water, the engineer sounded the whistle at the usual place. Soon thereafter the flagman entered the rear end of the smoker, where plaintiff and his uncle were riding, and called out, “Cold-water.” He then proceeded to the door separating the colored compartment from the smoker, and again called out, “Ooldwater.” He then returned to the rear door of the smoker, threw the same open and propped it, and called out, “All out for Ooldwater.” With lighted lantern in hand, he crossed over the platform of the rear end of the smoker onto the platform of the forward end of the ladies’ coach, and made the same announcement to passengers in that coach, and then stepped back again on the forward end of the ladies’ coach and stood on the lowest step, with lighted lantern in hand, waiting for the train to stop'. He was then on the east side of the train. This was about 6 :30 p'. m., and it was dark.

After this announcement by the flagman, and while he was still standing on the steps, the plaintiff came out of the rear door of the smoker on the platform, being followed by his uncle, and, without stopping to look out, turned and descended from the car, on. the east side of same, to the ground, holding to the iron rail as he alighted, and he fell. In the fall, one of his hands was crushed by the wheels of the train. It was so badly mutilated and crushed that it was necessary to amputate same above the wrist, which was done that night. His uncle, who came out on the platform with him, did not attempt to descend the steps, stating on the trial of this cause that he discovered the train was moving while he was standing on the platform, by seeing the train pass a telegraph pole. He testified that he, too, thought the train had stopped when he arose from his seat, and did not know any better until he saw the train pass said telegraph pole, and at that moment he saw his nephew stepping to the ground, and he called out to him to stop, but it was too late. The flagman states, also, that when he saw the plaintiff stepping off the last step to the ground he called out to him to stop*, but it was too late. Plaintiff states in his testimony that, after the flag'man called out, “All out for Coldwater,” he thought the train had stopped.

The evidence shows that he had traveled some upon trains, and was familiar with this depot and all of its surroundings, having taken the train there often, and had visited the town of Coldwater many times. Hpon the trial of this cause, he admitted in his testimony that he made no effort whatever to ascertain if the train had stopped, and did not look for the depot or any other familiar object. He admits that he paid no attention to whether the train was running or not, and made no effort to ascertain if the train had reached the depot. When asked, among others, the following question, he answered: “Q. You did not take notice to see whether it was running or not? A. No, sir.” In another part of the record he was asked: “Q. Didn’t you say, just now, that you did not pay any attention to whether it was running at all? A. Tes, sir. Q. Thei flagman was out there on the platform ? A. Yes, sir. Q. Had his lantern? A. Yes, sir. Q. And was shedding light around ? A. It was lighted. Q. Could not you see, from that light, where the train was ? A. I went out to the door and turned. I had been watching the steps. Q. You gave your solid attention to the steps? A. Yes, sir. Q. When you got on the steps, didn’t you pause a little? A. No, sir; I went straight down. Q. It was not so dark that you could not see a big thing like that ? If you had seen the platform, you would have been satisfied the train was not at the depot ? If you had given any attention, you would have seen, by the light of the lantern, that the train was running? A. I might. Q. And you did not try? A. No, sir. Q. You could also have seen this cotton platform, if you had tried to see it ? A. I could if I had tried. Q. You gave no attention to see whether the train was still running or not? A. No, sir. Q. Then you made no effort to see whether you had reached the depot ? A. I just relied on what the flagman said. Q. Did you look that night to see whether there was any light up there or not ? A. No, sir. Q. If you had looked up there, you would have seen the lights of the depot building? A. If I had looked out. Q. And you made no effort to see? A. I did not look around.”

Dr. A. J. Wilson, who performed the operation upon plaintiff, testified that he said to him, just before the operation, that he had acted foolishly in getting off, but was not satisfied that the train was in motion when he got off. J. L. Christie testified that, just before the operation this occurred between him and appellee: “I said, ‘Fred, how did all this happen anyway?’ And he said: ‘It was just carelessness. I thought the train had stopped, and got out on the platform, and stepped off, and fell off, and it cut my hand off.’ ” This accident occurred seventy-five or one hundred yards south of the depot, opposite the cotton platform, which could have been seen, if looked for, and the lights of the depot were visible from this point. The above are the leading facts in the case.

Plaintiff contents that the announcement of the flagman, “All out for O'oldwater,” under the circumstances, amounted not only to an invitation to the plaintiff to aligbt from the train, but it amounted to a command; that this announcement meant thatthe train bad reached the depot, and bad stopped for the purpose of discharging passengers, and if there were any who desired to aligbt at said station it was time for them to get off. From this it appears that plaintiff seeks to justify and excuses bis conduct upon that occasion, and to fasten liability upon defendant, by taking the ground that the calling out, “All out for O'oldwater,” by the flagman, and the opening and fastening back of the door by him, and bis failure to warn him of the danger when be descended the steps, constituted an invitation to liim to aligbt, and was an assurance on which be was justified in relying that it was safe to do so.

Upon the facts of this case we do not concur in this view. “Assuming that the action of the flagman, in calling the station and fastening bade the door was to be regarded as an invitation, it was clearly not an invitation to aligbt from the train while it was moving, but from the train after it bad come to a stop. It did not authorize the plaintiff to attempt to get off the train when in motion; but we do not think the action of the flagman can, as a matter of law, be regarded as an invitation. It was, at the most, simply an announcement that the train was near the station, and would presently stop, and was given in order that passengers intending to aligbt there might prepare themselves to do so when the train stopped.” England v. B. & M. R. R. Co., 153 Mass. 490, 27 N. E. 1. It must be evident that the announcement made on this occasion by the flagman was such as is usually made on all trains, and is done in the interest of the passengers, and it is construed to mean that such as may desire to get off may get themselves in readiness to do so. It is not an invitation to get. off, accompanied with an assurance that the train has arrived at its destination.

There is no usage or custom on the part of defendant road, or any railroad, requiring that the station shall not be called out until after the train has stopped; but, on the contrary, the usage and custom requires just exactly what the flagman did do on this occasion. However, should a passenger interpret this announcement, as plaintiff did on this occasion, that it was an invitation to him, with an assurance that the train had stopped, this did not absolve the plaintiff from all care, and throw upon the defendant the absolute duty of insuring his safety; nor could plaintiff, under these circumstances, abandon all prudence, caution, care, and common sense, and practically cease to use his own faculties. When he arrived upon the platform, the train was running, and it is clear, under the facts and circumstances in evidence, that the least observation on the part of the plaintiff would have shown him that the train was in motion. The lights of the train shining through the car windows, the light of the lantern of the flagman, the motion of the train, the cotton platform and other stationary objects, were all there within the range of his vision to give him his bearing, if he had only looked. Bear in mind that he was familiar with the topography, and the slightest observation would have shown him- the train had not stopped. This is evidenced from the facts in this case in many ways, but especially is it emphasized by the testimony of his uncle, who was on the platform immediately behind him, who said he discovered the train was moving by seeing the train pass a telegraph pole.

It is contended that the defendant is guilty of negligence, because the flagpian failed to warn him not to get off as he descended the steps. We think this is a strained and unreasonable construction to place upon the action of the flagman, construe,d in the light of all facts. The flagman did not know, and could not have known, that plaintiff intended to step off the train; but, on the contrary, he had a right to assume that he would not. In the case of Mearns v. Railroad of N. J., 139 Fed. 545; 71 C. C. A. 333, the court, in passing on a case involving about the same facts as this cause, said: “Even though it be assumed that the porter knew that the train was in motion, and that he saw the plaintiff step down from the platform, this falls far short of showing that he knew, or ought to have known, that plaintiff intended to step off. It is so common for eager passengers, in approaching a station, to descend to the last step in order to avail themselves of the first opportunity to alight, that a guard, who called out to a passenger in such a situation, 'Don’t get off;'the train has not stopped,’ would probably be denounced as an impertinent interloper.”

We are of the opinion that the accident which befell the plaintiff was attributable to his own lack of care, and was not due to the negligence of the defendant.

Per Curiam.

For the reasons set forth in the above opinion by the commissioner, the judgment is reversed and cause remanded.