Davis v. Day , 127 Miss. 140 ( 1921 )

Holden, J.,

delivered the opinion of the court.

The appellee, Mrs. Eva C. Day, recovered a judgment for five hundred dollars against the appellant agent of the railroad company for its failure to heat and light its passenger waiting room at Shubuta, under section 4867, Code of 1906 (section 7652, Hemingway’s Code), and the agent appeals.

The appellee, Mrs. Day, with her husband and two children, boarded the passenger train at Mobile and arrived at Shubuta at twelve o’clock at night in February, 1920. The weather was extremely cold. Mrs. Day disembarked and went to the waiting room, took hold of the door, and found the room was unlighted and unheated. She intended to go in the waiting room, but, finding there was no heat or light, she thereupon went with her husband and children in search of a room for the night at the hotels in the town. \ They failed to find accommodations at the hotels and returned to the depot in about ten minutes and went into the waiting room and stayed there the balance of the night in the cold, and then left early in the morning for the home of a kinsman some thirteen miles in the country. The journey to the country was made in a wagcn, and the parties took the trip without having eaten any breakfast before leaving, and were several hours in the cold before reaching their destination. Mrs. Day testified that she took a bad cold, was confined to bed one day and suffered with the cold for about six weeks thereafter.

As to whether she took the bad rcld before she returned from the hotel to the waiting room or whether she took the cold in the waiting room, or on the road in the wagon the next day, her testimony is not clear and certain. Whether she took cold or suffered in any substantial way from the cold weather immediately after she found that there was neither light nor heat in the waiting room, which resulted in causing her to stay on the outside of the waiting room, her testimony does not positively and conclusively show in this record.

The proof in the case shows without dispute, therefore conclusively, that the railroad agent failed to heat and light the waiting room for the use of passengers for thirty minutes after the arrival of the train. It is also undisputed that Mrs. Day intended to go into the waiting room immediately upon her arrival, but did not do so because there was no fire or light in the room. It is thus undisputed that she was denied the use of a heated and lighted waiting-room, causing her to remain in the cold for a considerable time, but whether this denial of a heated waiting room resulted in substantial discomfort and injury the testimony does not conclusively show. The railroad company made no denial of the facts shown; it appearing that the agent failed to heat the waiting room because he did not know there was a passenger desiring to use it.

At the conclusion of the testimony for the plaintiff below, the defendant offered no testmony. A peremptory instruction to find for the plaintiff as to liability was granted, and the jury returned a verdict for five hundred dollars, the full amount sued for in the case.

The principal contentions of the appellant for reversal are that no liability of the railroad is shown because the appellee, Mrs. Day, did not enter the waiting room when she got off the train, but went to the hotel, and thereby the relation of passenger and carrier ceased, and no damage was shown before such relations ceased, and the damage of getting cold in the waiting room after she returned from the hotel to the waiting room and there remained all night was an injury received at a time, if at all, when the railroad was under no obligation to furnish a heated waiting room for her, since she was no longer a passenger; and, second, that the proof of injury and damage is insufficient with reference to when and where she took a bad cold, and that, if she in fact suffered from cold, she contracted it, not while in the waiting room nor while she was attempting to get into the waiting room, but that the cold was contracted while driving into the country the next day, or that it was contracted while waiting in the waiting room after the expiration of the thirty minutes following the arrival of the passenger train which brought her to Shubuta.

After a most careful consideration of the testimony in this record, we are convinced that the proof of injury and damage to the appellee is not certain and conclusive, and therefore the granting of the peremptory instruction for the plaintiff was error. We deem it unnecessary to pass upon the question of an excessive verdict or whether the cold was contracted on the outside of the waiting room or on the inside during the thirty-minute period after the arrival of the train, because these are questions of fact for the jury on a new trial.

The contention of counsel for the appellant that the relation of passenger and carrier had ceased because the ap-pellee did not enter the waiting room upon finding that it was dark and unheated is untenable, for the reason that the relation existed at the time the passenger intended and "attempted to enter the waiting room, but did not do so because the appellant bad failed to comply with the law requiring that tbe room should be lighted and heated for thirty minutes for the use of disembarking passengers after the departure of the train, and continued for the thirty minutes. Therefore the passenger was denied the use of a heated waiting room for thirty minutes, during which time she was compelled to endure the cold weather either inside or outside of the waiting room. This may have resulted in great discomfort to the passenger, and may even have resulted in her taking a bad cold, causing her to suffer many weeks thereafter.

We do not think the mere violation of the statute requiring that the room be lighted and heated gives a right to recover damages, because, in addition to showing the violation of the statutes, it is also necessary to show that the violation resulted in injury to a passenger having the right to use the waiting room. But we think the proof sufficient here for a jury to determine whether or not the appellee was substantially damaged on account of the failure of the railroad company to furnish a heated and lighted waiting room.

The testimony of the plaintiff below substantially tended to show that she was caused to endure the cold, and probably suffered therefrom, because the room was not heated and lighted; yet this proof is not conclusive that she was thereby damaged, because the other facts and circumstances in the case tend to dispute the claim that she received the bad cold on account of being deprived of a warm waiting room, or that she contracted the bad cold during the thirty minutes’ time in which the railroad was under' obligation to furnish a heated waiting room. That she may have contracted the cold on her way to the country in the wagon the next day, or that she took the cold while in the waiting room after the expiration of the statutory thirty minutes, are questions of fact that should have been passed upon by the jury.

The record shows an unusual case, in this, that" the ap-pellee, with her husband and two children, was unable to get accommodations for tbe night at a hotel, and if it had not been for the housing shelter afforded them by this friendly waiting room on that extremely cold night, in which they might have built a fire, they would have had to stay out in the open weather all night, which probably a. juld ave resulted in greater injury than that shown in this record. This fact, however, :s not material to the decision of the case, but it cannot escape attention in connection with the other features of the case upon which the claim for damage is predicated.

The judgment of the 1 nve:- court is reversed and the case remanded.

■ Reversed and remanded.