Pullman Co. v. Kelly, 86 Miss. 87

Pullman Co. v. Kelly

86 Miss. 87 | Miss. | 1905

Oox, J.,

delivered the opinion of the court.

These cases are practically identical fin their facts. They were submitted and argued together, and will be decided to-*101getter, as the determination of one legal question, which is common to both, will dispose of both.

We do not concur in the contention of counsel for appellant that a sleeping car company, not being a common carrier, is therefore under no duty to give any notice whatever to its day passengers that they are about to arrive at or have arrived at their destination. We would hold, even in the absence of a constitutional provision declaring sleeping car companies to be common carriers in their line of business and subject to liability as such, that a sleeping car company, having received a passenger in one of its cars, and given him, for a consideration, the right to occupy a seat therein between certain points, is under an implied obligation to give notice, if not by public announcement, then directly to him in person, that he has reached the end of his ride with them, which is presumably his destination. Certainly this must be the law when sec. 195 of the constitution is considered. If that section means anything, it can mean no less than that a sleeping car company owes to all passengers whom it receives all the obligations and duties which a common carrier owes to passengers, except, of course, that a sleeping car company, not controlling the motive power and not having the management of the train of which its car is a part, cannot be held liable to its passengers for injuries occurring to them by reason of any defect or failure in the machinery which furnishes the motive power, or by reason of any want of care, miscarriage, or default in the management of the train. It is settled beyond all controversy that a common carrier of passengers owes to them the duty of giving them notice when they have reached their destination, and of affording them reasonable opportunity to get off the car or other conveyance. By our constitution this duty is imposed upon sleeping car companies.

But these cases must be reversed because the jury were allowed to consider mental pain as an element of damage, and v^ere not instructed as to the conditions under which-damages *102for mental pain are allowed, and because, in fact, an instruction was given which, authorized them to allow damages for mental pain under conditions which do not warrant such damages under the law as announced in this state. An instruction was given for plaintiff in each-case (and in each case marked “Instruction K"o. 4”), which reads as follows: “The court instructs the jury that mental and physical pain are what is known as ‘actual damages,’ and that, if the jury find for plaintiff, it is their duty to take into consideration the mental and physical injury to the plaintiff, provided they believe from the evidence that she has suffered such mental or physical pain.” The confounding of mental and physical pain with mental and physical injury, though the two are not necessarily the same, might, perhaps, be excused, if the jury had not been directed to take into considei’ation the mental and physical injury of the plaintiff, provided they find she sustained mental or physical’pain. This would warrant damages for mental pain in the absence of any physical injury. We adhere to the rule that, in the absence of any physical injury, there can be no recovery for mental pain, except in a case in which punitive damages would be allowed. Dorrah v. Railroad Co., 65 Miss., 14 (3 South. Rep., 36; 7 Am. St. Rep., 629).

If the jury had been elsewhere informed that there could be no recovery for mental pain unless there was also some physical injury to which the mental pain was in some way related, the error in instruction Ko. 4 might have been cured. But instruction Mo. 4 was incorrect and misleading, and the law was not elsewhere correctly stated. Upon any view of the case, the physical injury is not clearly shown. It may be that the jury, misled by instruction Mo. 4, awarded damages for mental pain, even though they may have found that there was no physical injury.

As to whether the wrong done appellee, Mrs. D. E. Kelly, and her infant son, Joseph, in failing to give her notice that she had reached her destination, and in carrying her, with two *103young .children — one of them sick — -more than half a mile beyond her destination, putting her off the car upon the outskirts of a strange city, near sunset, on a cloudy winter evening, and leaving her, thus incumbered, to find her way to her friends as best she could, should not have been submitted to the jury, under proper instructions, as tending to show willfulness, wantonness, recklessness, or gross negligence, warranting punitive damages, we do not decide. Though this is earnestly pressed upon our consideration in brief of counsel for appellees, we cannot now pass upon it, because no such question is before us on this appeal, appellees not having taken a cross-appeal.

The court erred in granting instruction UsTo. 4 in each case, and for this each case must he reversed.

Reversed and remanded.