Carson v. Leathers , 57 Miss. 650 ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

The plaintiffs sued the defendant to recover damages for a breach of duty on his part as a common carrier. At the conclusion of the testimony in the court below, the judge instructed the jury that, if they believed all the evidence in the case, they should find for the defendant, and, thereupon, the jury, as in duty bound, so returned their verdict. “ Such an instruction is only proper where all the fact-s in evidence being taken as absolutely true, every just inference from them fails to maintain the issue.” Whitney v. Cook, 53 Miss. 551, 559; Swan v. Liverpool Ins. Co., 52 Miss. 704. If there is any conflict in the evidence, the view which is most favorable to the plaintiff must be taken as absolutely true. The testimony shows this state of facts: Mrs. Carson, with her two little daughters, embarked at Vicksburg on the steamboat Natchez for Palmyra Landing, upon the assurance that she should be landed there. Being without a male escort, she placed herself under the care of the clerk of the boat. She was landed at two o’clock in the morning at Point Pleasant Landing, a mile distant from Palmyra, and was forced to spend the night, with her children, in an open warehouse, almost without fire, and to procure transportation next morning to her proper destination. The night was very dark, and bitterly .cold. She was induced to disembark at Point Pleasant by assurances communicated to her by one Hickey and one O’Kelly that she had arrived at her landing, and the boat pushed off before she had time, after discovering her error, to re-embark. Hickey was a personal friend of tbe officers of the boat, travelling free, and, in return for the favor, assisted the clerk in various ways, and especially in the matter of escorting ladies on and off the boat. He was supposed by Mrs. Carson to be one of the clerks. O’Kelly was a passenger, and an acquaintance of Mrs. Carson’s, and th¿ clerk, on retiring for the night, requested him to see her safely on shore when her landing was reached. Both Hickey and O’Kelly supposed when they conducted her ashore that she was disembarking at Palmyra, and this mistake grew out of the fact that the boat had run past that place without stopping, and with the intention on the part of her officers of returning to it after making the landing at Point Pleasant.

Manifestly, under these circumstances, the instruction complained of was improperly given to the jury. It was proved that the custom of the boat was to notify passengers of their arrival at their places of destination, a custom that would seem indispensable at night, and Mrs. Carson had therefore a right to expect such notification. When -she received it from Hickey, who, with the knowledge and consent- of the officers, assumed to act for them in such matters, and from O’Kelly, who, at the special instance and request of the clerk, was representing him in so doing, she had a right to act upon it. The defendant in error is bound not only by the acts of his clerk, but by the acts of those to whom, in this matter, the clerk had deputed the performance of the duties intrusted to himself. The case stands precisely as if the clerk had in person misdirected and led Mrs. Carson off the boat. Wood’s Master and Servant, § 308 ; Shearman & Redfield on Negligence, § 70. It will be understood that we have, for the purpose of considering the instruction, stated the facts most strongly for the plaintiffs. It will be for the jury to say what the facts really were.

Judgment reversed and new trial awarded.