Yazoo & M. V. R. R. v. Aden

Cook, J.,

delivered the opinion of the court.

H. B. Aden, appellee, sued the Yazoo & Mississippi Valley Railroad Company, appellant, for damages inflicted on him by thq negligent act of the train auditor, who, it is alleged, shoved him off one of appellant’s passenger trains. The jury returned a verdict for plaintiff, assessing his damages at four thousand dollars.

The evidence for plaintiff tended to show that plaintiff boarded a train standing in front of the station at Valley Park for the purpose of taking passage to Vicksburg. After he had boarded the train, he went down on the bottom step of the platform to give some final-directions to an employee. While talking to this person the auditor came behind him, slapped him on the shoulder, and shoved him off the train, at the same time telling him he conld not ride on that train, bnt could take a train which would reach Valley Park in a short time. Plaintiff says he was seriously injured. The auditor testified that he did not touch Mr. Aden at all, merely told him that he could not ride on that train, and that, if plaintiff was injured at all, it was not caused by any act of his.

The evidence discloses that the train in question, when running on its regular schedule, did not stop at Valley Park; but for some time preceding the event the train had taken the place of the train scheduled to stop at this station, on account of an overflow caused by a crevasse in the levees of the Mississippi river. The evidence warrants the conclusion that the regular train for this station resumed its run on the day before this occurrence, and the train which plaintiff got on was no longer taking on passengers at this station. Plaintiff boarded the train on the side away from the station, the door on the station side being closed. It is shown, however, that this train had before this time, and while there was no overflow, stopped at Valley Park, and passengers boarding same had been permitted to ride thereon to Vicksburg. The defense was that the plaintiff’s version of what happened had no foundation in fact.

In this state of the record, the court instructed the jury, at plaintiff’s request, as follows: “The court instructs the jury that, if they believe from the evidence it was the custom of defendant’s train to take passengers from Valley Park station when said train stopped there, then the plaintiff had a right to passage on that train, and the jury will find for the plaintiff, and assess such damages as have been proven, not to exceed ten thousand dollars.” It will be seen that this is a peremptory instruction to find for plaintiff, if the jury “believed from the evidence it was the custom of defendant’s train to take passengers from. Valley Park station when said train stopped there.”

Under this instruction the jury was required to find for plaintiff, although they might believe from the evidence that the train auditor did not touch plaintiff. Besides, we do not believe the evidence warranted a belief that “it was the custom” for this train to take on passengers at that station. At the most, it could only he said on several occasions passengers had been permitted to take passage at the station of Valley Park. Moreover, there is nothing in the evidence to warrant a finding that plaintiff had a right to passage on the train.

Several instructions were given for defendant, and other instructions than the one above quoted were granted for plaintiff, which we do not deem it necessary to consider, because the instruction quoted cannot be made to harmonize with any of the other instructions, but, on the contrary, is in direct conflict with all, and is fatally erroneous.

Reversed and remanded.