Georgia Pacific Ry. Co. v. Robinson

| Miss. | Apr 15, 1891

Cooper, J.,

delivered the opinion of the court.

The evidence of the plaintiff fails to establish that the “ section house” was either a depot or a place at which the appellant was accustomed to receive or discharge passengers, or at which any invitation had been given to the plaintiff or any one else to take passage on its trains.

The plaintiff’s case must therefore stand upon the facts disclosed of an unlawful flagging of the train by him on a dark and rainy night at a point on the road at which the servants of the company had no reason to expect a passenger, the stopping of the train because of the signals given by the plaintiff, his attempt to board it while so stopped, the movement of the train at the instant he attempted to enter it, and the consequent injury, together with the fact that after he had entered the train the conductor in charge collected the fare due for a passenger from Malmaison to Greenwood.

Upon the plaintiff’s own testimony, and drawing therefrom the inferences most favorable to him, no right of recovery is shown to exist. It does not appear that any servant of the company was informed that the plaintiff desired to take passage on the train, or that he was attempting or intended to attempt to get on it. After the injury had been sustained the plaintiff went into the car (the train having just passed a station), and when the conductor came through paid him the fare to his point of destination. But he himself states that -lie then for the first time saw the conductor, and there is nothing to show that the conductor had before seen him. The fact that fare was then collected throws no light upon the past occurrence from which the injury resulted. The conductor found plaintiff upon the car, and treating him then as a passenger, as he rightly might do, demanded and received the fare due from him as such. But this does not show that the conductor had invited him’ to enter the train at the point he did enter it as a passenger, or in fact knew that he had embarked there. We are not called upon under the facts of this case to determine whether it is within the scope of the authority of a conductor in charge of a train to bind the company by an attempt to enter into a contract of carriage with a person presenting himself at a place other than those provided for passengers, or outside of the usual course of business. It is sufficient for the decision of the present appeal to say, that under such circumstances it is at least necessary that the servants of the company be informed that a. person presenting himself under the circumstances disclosed here, contemplates and offers to become a passenger, before they can be required to deal with him as such. No such fact appears in the present case, and the court should have given the peremptory instruction asked by the defendant.

The judgment is reversed.