Dowell v. Vicksburg & Meridian R. R.

Campbell, C. J., delivered the opinion of the court. The circuit court properly instructed the jury to find for the [532] defendant. A recovery by the plaintiff could not have been permitted to stand, and it was right to tell the jury so. The facts are undisputed and the inferences to be drawn from them are unmistakable. The plaintiff brought his misfortune on himself by his own recklessness and cannot visit its consequences on another. This is decisive against him under the first count of his declaration, and it would not have availed him to prove that he knew how to get on a train in motion, and had been seen to do it with impunity, and that it is customary for railroad men to do this. Without deciding any other question under the second count, we hold that the plaintiff was not entitled to recover because the statute on which it is based, § 1047, Code of 1880, does not embrace employes among those to whom a right of action is given by it. This section and others in connection with it were brought forward from the Code of 1857, and it was held in N. O. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258, that one of' the sections did not include employes, and it must follow that the section under consideration does not embrace them. Aside from authority, we consider it better policy to deny to employes a right to recover for violations of law in which they are themselves the actors. The statute forbidding a greater speed than six miles an hour in towns is more likely to be observed by employes on trains if they are required to take all risk of violating it. To permit them to violate the statute and to derive advantage from it would serve to tempt to disregard it. Affirmed.