Yazoo & Mississippi Valley Railroad v. Aden ( 1899 )

Whiteied, J.,

delivered the opinion of the court.

• This case is very meager and unsatisfactory on the point as to whether the appellant was familiar with his surroundings and knew of the trestle. He was not once asked that question by either party. He requested to be taken back to' the place for which his contract called, but this the conductor declined to do. The track was surrounded on both sides by water, so that there was no practicable route back to his destination save over the roadbed of the appellant.- The choice submitted to him under the circumstances was a compulsory one. Higgins v. Louisville, etc., R. R. Co., 64 Miss., 80; Louisville, etc., R. R. Co. v. Mask, 64 Miss., 738.

The only serious question in the case is whether the injury sustained is the natural and proximate consequence of the conduct of appellant. There is conflict in the evidence as to the character of the night — whether starlight or not — and there is an utter absence of any proof as to the character of trestle, beyond the mere fact that it was a trestle.

We have carefully considered all the cases cited by learned counsel for appellant, and we think this case falls within the principles announced in Winkler v. St. Louis, etc., Ry. Co., 21 Mo. Appeals, 106, 107. The court, on a state of facts very like those here, say: “If a passenger, instead of' being discharged at the place called for in the contract of carriage, is discharged in the night time at another place, so that in getting to his place of destination it becomes necessary to walk along a path containing a dangerous obstruction, it is not too much to say that the danger of his being injured by such obstruction is a danger which the carrier ought to foresee, and that it is not an. unnatural, improbable or remote consequence of the act of discharging the passenger in such a place.” The passenger there, as here, had no practicable route, except along the track itself, and, in that case, he did net ask the conductor, as here, to back the train to his station.

The case of Lewis v. Railway Co., 54 Mich., 55, is unlike this case in its facts. It is made perfectly plain in that case that the plaintiff “knew the place well, and that on the track he must cross an open cattle guard to reach the highway” (p. 57). And it is further shown (p. 65) that “he had voluntarily started south, with the expectation of crossing the cattle guard on that side, over which he might, or might not, find a plank laid, when by stepping back a few rods where he supposed the station house to be, he might have passed from thence out to the highway by the passageway for persons and vehicles leading from the station house to it, and thereby have avoided the cattle guard altogether.”

This appellant was compelled to take the route along the railroad track, and no other, to get to his destination. See, also, Texas & Pa. Ry. Co. v. Cole, 66 Texas, 562. The testimony shows that appellee used the best care he could in his situation. Under these circumstances, whether his injury was due to contributory negligence or recklessness on his part, was a question of fact for the jury. See Lewis v. Railway Co., 54 Mich., at page 58; and Galveston, etc.. Railway Co. v. Crispi, 73 Texas, at page 239.

Affirmed.