Brown v. Mississippi Cent. R.

* Corpus Juris-Cyc. References: Actions, 1CJ, p. 1056, n. 68, 69; p. 1063, n. 49. Carriers, 10CJ, p. 883, n. 97; p. 1001, n. 21. Pleading, 31 Cyc, p. 79, n. 4; p. 83, n. 16; p. 102, n. 98. The appellant, C.H. Brown, sued the appellees Mississippi Central Railroad Company and Bonhomie Hattiesburg Southern Railroad Company for damages for personal injury and for the wrongful failure to safely transport him, without unnecessary delay, from Hattiesburg, Miss., to Mobile, Ala., as a passenger on a train of the Mississippi Central Railroad Company. From a judgment of the lower court sustaining demurrers to the declaration Brown appeals to this court. The question presented for our decision is whether or not the declaration sufficiently charges a cause of action against the two railroad corporations, or against either one of them. The declaration is very inartistically drawn, and too lengthy to set out in full; and, in order to *Page 337 ascertain whether it sufficiently charges a cause of action, it is necessary to consider all parts of it together and determine whether, as a whole, under our liberal statute on pleading, the defendants in the case should be required to plead to the action. Very briefly stated, the declaration, in substance, charges that Brown purchased a ticket from the Mississippi Central Railroad, and embarked at Hattiesburg for transportation on one of its passenger trains for Mobile. In order to reach his point of destination, this passenger train had to go over a connecting junction track from the main line of the Mississippi Central Railroad to the main line of the Bonhomie Hattiesburg Southern Railroad. The passenger train of the Mississippi Central, with Brown as a passenger on it, proceeded over the connecting track, but this track at the point where it conjoins with the Bonhomie Hattiesburg Southern Railroad was spiked down. A car seems to have been wrecked on the Bonhomie Southern Railroad track at a point near the switch where the connecting track joins to the Bonhomie Hattiesburg Southern main line. There were at the time serious contentions and pending litigation between the two railroads as to which one had the right to use the Bonhomie Hattiesburg Southern track; and the spiking of the switch on the connecting track and the wrecking of the car at that point were inferentially done by the Bonhomie Hattiesburg Southern Railroad Company as a result of these contentions between the two railroads, which seem to have been accompanied by violence and force on the part of the employees of the two railroads at that particular point. When the Mississippi Central train upon which Brown was a passenger reached the spiked switch of the connecting track where it joined the Bonhomie Hattiesburg Southern track, it was derailed on account of the condition of the track, presumably due to the conduct of the Bonhomie Hattiesburg Southern Railroad employees, *Page 338 who threw axes and tools under the Mississippi Central passenger train, and the result was that this passenger train was derailed, and Brown, a passenger, was personally injured thereby. He was compelled to abandon the train and pursue another railroad route, by way of the Coast, to Mobile, which resulted in delaying him in reaching Mobile, and caused him financial loss on account of this delay. The declaration charges many other wrongful acts against the two railroads at the point where they connect, which, by reasonable inference, may be said to have been done by both railroads, which caused or contributed to the derailment of the passenger train upon which Brown was riding, resulting in his personal injury and unnecessary delay in reaching Mobile; but we deem it unnecessary to set out in detail all of the different wrongful acts charged to have caused the obstruction of the passenger train and the injury to Brown, but we have considered all of them together to test the point as to whether the declaration as a whole reasonably states a case against the two railroads. The demurrer seems to have been sustained by the lower court on the ground that the declaration did not attempt to say which one of the railroads was at fault from a legal standpoint with reference to which one had the right to use the Bonhomie Hattiesburg Southern track from Hattiesburg to Beaumont, a station on the Bonhomie Hattiesburg Southern Railroad between Hattiesburg and Mobile. It is contended by the Bonhomie Hattiesburg Southern Railroad Company that the declaration fails to charge that its conduct was wrongful and caused the injury to Brown. To put it in different words, the Bonhomie Hattiesburg Southern Railroad Company contends that no cause of action is stated against it on account of its conduct, and that therefore the demurrer was properly sustained as to it. *Page 339 The Mississippi Central Railroad Company urges the correctness of the judgment sustaining the demurrer as to it because the declaration does not sufficiently charge it with a tort, but that, if tort is sufficiently charged, then the demurrer should have been sustained, because the suit is in one count, and also charges a breach of the contract in failing to transport the passenger upon his ticket, and that the two causes of action are inconsistent, and cannot be pleaded in the same count. It is our opinion that the lower court erred in sustaining the demurrers of the two railroad companies. We think the declaration is sufficient to charge joint liability on the part of the two railroads, for the reason that the acts and conduct of both jointly contributed to the injury of the passenger, Brown. It was certainly the duty of the Mississippi Central to safely transport, without unnecessary delay, the passenger, Brown, from Hattiesburg to Mobile; and, when he purchased a ticket and embarked on one of its passenger trains, he was not charged with the knowledge of any dispute or violent contentions between the two railroads as to the use of the connecting track or the main line of the Bonhomie Hattiesburg Southern Railroad Company. And when the Bonhomie Hattiesburg Southern by its conduct obstructed the connecting track at the point where it joined with its main line, and thereby obstructed the Mississippi Central train, and caused it to be derailed, resulting in the injury to the passenger, Brown, it was guilty of a wrong, a joint wrong with the Mississippi Central Railroad Company, in that its conduct at the point where the connecting track joins with its main track endangered the safety of passengers on passenger trains entitled to use the connecting track under the laws of this state. The latter railroad company was guilty of a wrong, for which it was liable to Brown, when it proceeded over the connecting track and ran into the spiked switch and *Page 340 other wreckage there, causing the derailment of its train, and resulting in the personal injury to Brown. It should not have proceeded into this obstruction and thus endangered the passengers on its train. So the declaration charges the fact to be that the wrongful and unlawful conduct of both of the railroad companies at that point caused Brown's injury and unnecessary delay; therefore we think the declaration sufficiently charges a cause of action against both railroads. It does not so far appear as to which railroad had the legal right to use the tracks; and neither the passenger, Brown, nor this court is concerned with this question at this time. We do not think the declaration charges two inconsistent causes of action in one count, as contended by counsel for the Mississippi Central Railroad Company. The one cause of action grows out of the breach of duty on the part of the Mississippi Central in not safely transporting its passenger, Brown, from Hattiesburg to Mobile, and by proceeding into the spiked switch, and the Bonhomie Hattiesburg Southern contributed to this wrong by its conduct at the point where the connecting track joins its main line by obstructing the Mississippi Central train. The different kinds of damages flowing from the one cause of action may be ascertained and recovery had therefor under the declaration in the case. The judgment of the lower court is reversed and the case remanded. Reversed and remanded.