Richmond & Danville Railroad v. Burnsed

Woods, J., delivered the opinion of the court. The appellee’s theory of the case, as disclosed in his declaration, is that he was a passenger on a freight-train by virtue of a contract of carriage of stock made with the appellant, under which he was entitled to free transportation because of his ownership of a part of the mules. The appellee’s evidence utterly fails to support his theory. . It is manifest that the stock was owned by Gresham and Loudon, and that the contract of carriage was made with Gresham alone. It is equally certain that Gresham’s name alone appeared in the bill of lading, and that he alone was by the contract entitled to the free transportation. It is admitted that all of the animals were consigned to Gresham, at Indianola. By the appellee’s own testimony, he had merely a verbal agreement to buy some of the mules, after Indianola had been reached, [442] and then only if he could make the security required. It is idle to discuss the question of ownership. The appellee conclusively fixes that in Gresham. By his own evidence, too, he is shown to have been improperly on the train. He had no contract Avith the railroad; he was not even seen by the railroad agent; he did not go near him when the contract was made; his name was not mentioned to the agent, and was not inserted in the bill of lading, as must have been done to entitle him to transportation. He was a trespasser, pure and simple. He Avas attempting to get a free ride from Winona to Indianola when he received the lamentable injury complained of. The learned judge in the trial court properly declared to the jury that appellee was not a passenger, and was not entitled, under the rules of the defendant company, or by virtue of any contract with the company, to ride on that train. He was a naked trespasser, and his right to a recovery must be determined by the wantonness or wilfulness of the company’s servants in the matter complained of. The company owed this trespasser no duty other than that of doing him no wanton or wilful hurt. The company Avas not answerable to him for negligence, for it was under no obligation, contractual or other, to carry him safely. Gross negligence, by the statute law of this state, is made the test of a right to recovery by a passenger on a freight-train, and we have never anywhere seen that a passenger and a trespasser occupy the same relations to the carrier, .or that they stand upon the same ground. The company was under no contract, express or implied, to safely carry appellee. He was attempting wrongfully to secure a ride without paying for it, and he .must be held to have assumed all' the perils incident to the ride. Under settled rules of public policy, railway companies are not to be made liable for injuries received by trespassers upon their trains, unless the injury is inflicted under circumstances indicating Avantonness or wilfulness in the servants of the companies. The rule seems to be almost universally [443] recognized and approved, and is in consonance with reason and right. Toledo Ry. Co. v. Brooks, 81 Ill., 245-292; Chicago R. R. v. Michie, 83 Ill., 427; Toledo Ry. Co. v. Beggs, 85 Ill., 80; McConley v. Tenn. Co., 93 Ala., 356; Louisville Ry. Co. v. Phillips, 112 Ind., 59; Powers v. Boston R. R., 153 Mass., 188; Brown v. Missouri Ry. Co., 64 Mo., 536; Duff v. Allegheny R. R. Co., 91 Pa. St., 458; and Gardner v. New Haven Co., 51 Conn., 143, were all cases involving the rights of intruders in cars, trespassers on trains, and not trespassers on tracks or premises, and the foregoing doctrine, as stated by us, was applied as recognized law. The doctrine is to be found in the text-books generally. Can it be seriously insisted that a trespasser upon a train occupies a better position than trespassers on tracks? If degrees in trespass could be established, it occurs to us that the train trespasser is a greater wrong-doer than the track trespasser. He, like the track trespasser, is entitled to exemption from wanton or wilful injury, or. from injury that might and should have been avoided by the railway company after seeing the danger of the trespasser’s situation. This court has repeatedly so held. Stroud v. M. & O. R. R. Co., 64 Miss., 784; Dooley v. M. & O. R. R. Co., 69 Miss., 648; and Railway Co. v. Williams, 69 Miss., 631. The able counsel for appellee is mistaken in supposing that the case of the V. & M. R. R. v. Phillips, 64 Miss., is in conflict with the preceding opinion, or that it is authority for the doctrine that negligence alone will entitle a trespasser to recover for injuries received without fault on the part of the railroad company’s servants after seeing the trespasser’s peril. In that case, a little boy of tender years was enticed upon a train side-tracked at Jackson by the music of a band playing thereon, and was cursed and driven out by a railroad employe after the train had got in rapid motion, whereby, in an effort to escape the abusive and profane and threatening employe, the child fell under the wheels of the train, and [444] was horribly mutilated. The second instruction asked for the railroad in -that case sought, virtually, to constrain a verdict for the company by excluding from the jury’s consideration the peril of the child, and the railroad’s knowledge of that peril, when the child was being cursed and driven from the car, as well as all inquiry as to whether, but for the employe’s outrageous behavior in the perilous situation of the child at the time, the injury would not have been averted. An instruction should be applicable to the facts of the particular case; and the second instruction of defendant, refused by the court in the Phillips case, did not meet this sensible requirement. , That the appellee was not a passenger by invitation or license from the conductor is too clear for controversy. "When the appellee and his two companions overtook the train at the tank, the remark of the conductor was expressive of his surprise at the appearance of all the persons as passengers under the contract of carriage for the car-load of mules. lie did not then know what' rights they, or any of them, had acquired under that contract, and he had no opportunity or occasion to examine the bill of lading, which served the purposes of a ticket in such case, and ascertain whether appellee was rightfully on the train, before the accident occui’red. He simply did his duty in courteously receiving a professed passenger — one holding himself out as a passenger — and in courteously treating him, in the absence of knowledge that the ostensible passenger was, in fact, a mere trespasser. The peremptory instruction asked by the appellant should have been given, and, for the error committed in refusing it, the case must be reversed. This view obviates the necessity of passing upoil any of the other contentions. Reversed.