Spinks v. New Orleans, Mobile & Chicago Railroad ( 1913 )

Smith, C. J.,

delivered the opinion of the court.

Appellee’s contention is that the peremptory instruction was properly granted for two reasons: (1) Because no negligence on the part of the conductor was shown; and (2) because appellant voluntarily placed himself in a position of danger, and thereby assumed the risk incident thereto.

In Railroad Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689, after holding that it was the duty of a conductor to preserve order on his train, and to protect his passengers from injury by fellow passengers, the court proceeded to state that “the announcement of this doctrine for the first time, in its practical application in the jurisprudence of the state, admonishes us that it should be stated with its proper limitations and restrictions. It is first to be observed that the liability of the carrier arises, not from the fact that the passenger has been injured, but from the failure of the officials to afford protection. It will be necessary, therefore, in each case to bring home to the conductor knowledge or opportunity to know that the injury was threatened, and to show that by his prompt intervention he could, have prevented or mitigated it. It must be remembered, also, that the power at his disposal consists of the train hands and the willing passengers, that he can never be expected to accomplish anything more than is possible with this force, and that all that can be required of Mm, at last, is a fair and bonest effort to prevent the wrong’. Considering the delicate, and often difficult and dangerous, duties that may devolve upon him, he should be allowed a wide latitude in the means to be employed; and his superiors should never be mulcted in heavy damages where there has been a bona fide, though mistaken, attempt to afford protection.” In Royston v. Railroad Co., 67 Miss. 376, 7 So. 320, and in Railroad Co. v. Minor, 69 Miss. 710, 11 So. 101, 16 L. R. A. 627, the soundness of this rule announced in Railroad Go. v. Burke, supra, imposing liability upon a common carrier for injuries inflicted by one of its passengers upon another was doubted, and an emphatic announcement made that, while the court felt “constrained to yield to that decision as authority for the rule it announces, ’ ’ it would ‘ ‘ certainly not extend the doctrine so as to embrace any other than the case clearly falling within it. ’ ’

It may-be, as contended by appellant, that the conductor had the right to eject McWilliams from the train, as to which we express no opinion; but his act in placing him in the baggage car in charge of the baggagemaster, instead of ejecting him from the train, at night, in his then condition, was certainly in accordance with the dictates of humanity, and the conduct to be expected of a reasonable man. His passengers were not thereby endangered, and consequently, in so doing, he failed in no duty to them. The conduct of McWilliams at the time the conductor requested appellant to go into the car and help quiet him, conceding that such request, in fact, was made, had not been such as to indicate that appellant would incur any danger by complying therewith. It cannot, therefore, be said that the conductor knew, or ought to have known, that injury was threatened to or would probably be inflicted upon,-appellant. All that McWilliams had then done was to attempt to leave the train, and his conduct indicated that he was dangerous only to himself.

It seems manifest from this record that appellant’s injury was not the result of any negligence on the part of the conductor, but was simply the unexpected result of the very commendable effort of the conductor, appellant, and McEachin to extend to McWilliams that • care and protection of which he was then sorely in need. This being true, it is unnecessary for us to consider appellee’s second proposition, and we will therefore pretermit any ■discussion thereof.

Affirmed,.