Jackson Light & Traction Co. v. Taylor, 72 So. 856

72 So. 856 | Miss. | 1916

Lead Opinion

Stevehs, J.,

delivered the opinion of the court.

Instruction No. 1, in our opinion, was erroneous in two particulars. In the first place, it assumes that the signal was properly, given, and the conductor recognized or “caught” it. In the second place, it authorizes a recovery for failure to hack the car “when requested so to do.” The only signal given as they approached Euclid street was the signal of a little girl, nine years, old, and that signal was given by raising the hand. Neither of the witnesses for the plaintiff undertakes to say that the conductor saw the uplifted hand, or recognized it as a signal to stop. The evidence on this point was in sharp conflict, and the instruction should not assume the existence of a material fact in issue. This instruction also places upon a street railway the absolute duty to back its car for half a block when a passenger is carried beyond his destination. It is unnecessary for us to say that the agents in charge of a street car should under no circumstances hack the car for the purpose of allowing a passenger to disembark. "We cannot, however, say, under the facts of this case, that the car should have been backed for anything like half a block when the plaintiff and her mother could have remained on the car for the other one-half block and alighted at a proper crossing. A street railway company owes some obligation to other passengers on board as well as the complaining party negligently carried beyond hér destination, and certainly owes to the traveling public the duty of operating its cars on schedule time. If -the plaintiff in this case desired to avoid the mud and water so freely and manifestly existing in the middle of the block at that time, it was more reasonable under such circumstances to go to the next corner and alight in a safer place, although compelled to walk a half block further on their trip home. But, conceding the negligence of appellant in carrying the plaintiff beyond her destination, the damages resulting from such negligence were practically, if not altogether, nominal; and this brihgs us to a consideration of the next instruction complained of, authorizing the jury to award exemplary damages.

The granting of this instruction constituted error. By it the jury is told that if the conduct of the conductor in refusing to back the car was characterized by insult, oppression, or willful wrong, the jury might allow damages by way of punishment. The language employed by the conductor, taken most favorably for the plaintiff, amounted to nothing more than brusqueness. The language employed could not be characterized as insulting. It was held by this court in the case of Miss. & Tenn. R. R. Co. v. Gill, 66 Miss. 39, 5 So. 393. that:

“Brusqueness on the part of a railroad conductor is not an insult for which his employers are to be punished where it amounts to no more than appears” in that record.

And again :

“. . .' Mere brusqueness of the agent, not amount-ting to insult, is not ground, in law, for the infliction of punitive damages against his principal.” Railroad Co. v. Machine Co., 71 Miss. 663, 16 So. 252.

It has been expressly held, in reference to the operation of a railroad passenger train, that'a refusal to back the train and allow the passenger to alight at the proper place does not—

“constitute willfullness so as to authorize the imposition of punitive damage. ... In considering the right of one, all others are not to be forgotten. Each passenger has a right to reasonably expect that the train will be run on schedule time; each passenger may make his business arrangements predicated of that idea. The safe handling of the train may depend upon its schedule. . . . Shall these considerations of public importance all be brushed aside at the instance of one passenger whom the carrier has negligently carried by his proper destination? ... In such case, the infliction of punitive damages would impede, and not promote, the public good.” Yazoo, etc., R. Co. v. Hardie, 100 Miss. 132, 55 So. 42, 967, 34 L. R. A. (N. S.) 740, 742, Ann. Cas. 1914A, 323.

We recognize the fact, of course, that these observations were made with reference to the operation of steam railways, but 'the same principle, in our judgment, largely applies in the instant case.’ Can it be said to be the absolute duty of the employees operating a street car loaded with passengers to back for half a block simply to allow one passenger to alight, and that upon refusal to back, the company subjects itself to liability for exemplary damages? Will the allowance of exemplary damages in such instance promote the public good? We are not, of course, speaking about the right to recover punitive damages for a willful or wanton disregard of plaintiff’s rights, or for an insult on the part of the employee. There is no such case presented by this record. There is no showing that the conductor willfully or consciously carried the passenger beyond her destination; and the language employed when. the passenger alighted is not sufficient to constitute an insult. The only point then on which plaintiff can rely for an award of punitive damages is the alleged willful refusal to back the car. The facts of this case,' at best, simply show an act of simple negligence, and gross negligence cannot be built up by the addition of two acts of simple negligence ; that is to say, the negligence of appellant in first carrying the passenger beyond- her station, and next, the negligence in depositing the passenger at a muddy or unsafe place.

Counsel for appellee rely upon the case of Railway L. & P. Co. v. Lowry, 79 Miss. 431, 30 So. 634. The Lowry Case is materially different from the present case. In the former case the proof showed that Robert Lowry, a distinguished citizen of Jackson, signaled a car at its regular stopping place at the intersection of Yazoo and State streets, where there was but one pavement or crossing on which a passenger could walk without plunging into the mud; that Governor Lowry carried a heavy satchel; that the night was dark and stormy; that he duly signaled the car to stop; that the motorman saw and well understood the signal, but negligently ran his car some twenty or more feet beyond the crossing and into a very muddy place; that the conductor and Governor Lowry got into a dispute as to whether Governor Lowry should walk around the car in the mud to embark, or whether the conductor would back to the proper crossing; that the conductor willfully and arbitrarily refused to back a short distance and allow the passenger in that case to embark, but went on, leaving the passenger standing on the strip of brick pavement which constituted' the only safe and proper walking ground from which a passenger could embark at that point. Bobert Lowry was a citizen in public life and well known to the employees of the railway company, and, notwithstanding the fact that the motorman saw him and understood the signal, he not only ran his car beyond and into the mud, but willfully and arbitrarily refused to hack a short distance, finally deciding to leave the passenger standing where he was, and thereby requiring him to walk a long distance home on a stormy night. The facts are totally different. The passenger in that case had to he taken aboard at that crossing or left altogether. The present ease involves only the simple negligence of the company in failing to deposit the passenger at the proper corner or crossing.

There being no willful or wanton wrong or such gross negligence as imputes a willful disregard of plaintiff’s rights, the infliction of punitive damages constitutes error, which would necessitate a reversal of this case, aside from any other error assigned or relied upon.

Reversed and remanded.

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Dissenting Opinion

Cook, P. J., and Potter, J.

(dissenting). We are not prepared to say that the court has erred in reversing this ease. It is probable that the instructions given for the plaintiff constituted error, for which the case should be reversed. "We do not think that the opinion of the court correctly states the rule, and we are unable to distinguish this case from Railway Co. v. Lowry, 79 Miss. 431, 30 So. 634. True Governor Lowry was a distinguished citizen, and the plaintiff in this case was not, but it is also true that the evidence in this case for the plaintiff warranted the belief that the conductor stubbornly and for no reason at.all refused to back the car to the crossing.

The evidence for plaintiff shows that the conductor negligently refused to stop when signaled — and then, for no conceivable reason, declined to make amends for bis wrong.

Under tbe circumstances, deducible from plaintiff’s evidence, tbe failure to back tbe car was a wanton disregard of a duty owing to tbe plaintiff.