Alabama & Vicksburg Railway Co. v. McAfee , 71 Miss. 70 ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

On the testimony of the plaintiff himself the verdict should have been for the defendant. He shows that he fell among thieves, and, in being robbed, was pushed off the car and hurt. He had made an arrangement with the crew in charge of the train to work his way to Brandon, and suffered wrong at their hands, but he has no claim on the railway company for the wrong resulting from the disastrous consequences of his own venture. The people who wronged him were not serving the company in what they did. The whole thing was an unauthorized arrangement to suit the views of the participants, and not to serve the company, and it is not responsible for what happened by design- or accident.

The first instruction for plaintiff is wrong, as applied to this case. It is true that even a trespasser on a train must not be knocked off by the servant of the company engaged about his master’s business in putting him off', but that rule has no application here, where the plaintiff suffered injury from his own comrades, engaged not in serving the railway company or about its business, but illegally engaged in a scheme of their own, in violation of duty to the company, participated in by the plaintiff. He has no claim against the company he wronged by attempting to ride on its train without paying fare, and must look for redress for the wrong done him to the person who did it.

The peremptory instruction asked by the defendant might well have been given.

Reversed, and remanded for a neio trial.