Miss. & Tenn. R. R. v. Harrison , 66 Miss. 419 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

We confine our attention to a single one of the errors assigned.

The tenth instruction given on behalf of appellee should have been refused. By it negligence was imputed to the defendant for the moving of the train, though the movement was caused by the unauthorized act of Bull, a passenger, in pulling the bell-cord, on the ground that the train had not remained at the station sufficiently long to enable the plaintiff to get off. If while the plaintiff was in the act of getting off the train, a stranger had given the signal to start and the engineer had put the train in motion and the plaintiff had been injured by the sudden and unanticipated movement, or if the plaintiff, perceiving that the train was in motion, and believing it to be departing from the station under the orders of the servants of the defendant, for that reason attempted to debark to prevent being taken beyond the station, the principle invoked by the instruction might have been applicable. But such were not the facts. The plaintiff testified as a witness in her own behalf, and stated that she saw Bull in the act of pulling the bell-rope and remonstrated with him. The instruction omits any reference to this knowledge by the plaintiff of what caused the train to move, and assumes that the liability of the company would be the same whether the plaintiff was ignorant or knew the cause of the premature movement from the station.

Two inquiries were involved in the issue: first, whether the injury to the plaintiff was caused by the negligent act of the defendant, and, second, whether the plaintiff contributed to the injury by her negligent act. The verdict of the jury absolved the plaintiff from negligence. It is not necessary to now decide whether on this phase of the case it should be upheld. Practically the jury was told that the negligence of the defendant was established if the train moved away from the station without having remained a reasonable time, even though the movement was caused by the act of Bull, notwithstanding the plaintiff knew the cause of the moving. The movement of the train was not, of course, per se negligence. It is the business of trains to move. The plaintiff and other passengers were on it because of its capacity to move and its duty to move. The circumstances under which it was moved must determine whether it was or was not negligent. What would make the movement a negligent one as to the plaintiff must be determined with reference to her surroundings, her knowledge and her rights. Unquestionably it was the duty of the defendant to give to her an opportunity safely to alight at her destination. But good faith is required of a passenger to the railroad equally with the requirement of careful service from the road to the passenger. The plaintiff here knew that the act which set the train in motion was not the voluntary act of its managers in the usual course of travel. She saw the passenger Bull pull the rope, and recognized the fact that it would put the train in motion. Knowing that the movement of the train was the act of the passenger and not that of the company, she ought not to have acted with inference to it as the act of the company. It was not, as she must have known, a departure of the train from the station, and knowing that fact she ought not to have acted as though it was. It must be assumed' that the defendant would have performed its duty by returning the train to the station and affording plaintiff an opportunity to safely alight as soon as the conductor in charge learned of the cause of its departure. The plaintiff, under the circumstances of this case, ought no more to be permitted to say that the movement of the train was a departure from the depot than she could have done if it had been set in motion by a sudden wind, and the cause had been known to her. The movement is as accidental in the one case as the other, and though the defendant might be liable in either case if the accident caused injury and could have been avoided, it does not follow that the negligence of a premature departure from the station could in either case be declared, so as to enable one knowing the facts to recover on that ground. Even though the act of the plaintiff was not negligent, she should fail of recovery under the facts named in the tenth instruction, added to the undisputed fact that she knew why the train moved off.

Reversed and remanded.