51 So. 273 | Miss. | 1910
delivered the opinion of the court.
Greenwood Springs is a station on appellee’s road where its trains stopped when flagged by the agent in charge of the station. On May 31, 1907, appellant and several others, having notified the agent that they desired to take passage on one of appellant’s trains,-were at the depot for that purpose. As the train approached, appellant and his companions signaled the •engineer to stop, by waving their suit cases across the track. There is some evidence, also1, that the agent signaled the engineer by waving his hands. The agent testified that he was not at the depot when the train whistled, that he got back to the depot just before the train passed, and that the only signal he made was “to hold up four fingers,” to indicate to the engineer that he had four .passengers. The engineer did not stop his train, and stated that he saw several parties at the station, hut did not see any signal made. From a judgment awarding
At the request of appellee the court gave the following instruction to the jury: “The court charges the jury that they are the sole judges of the amount of damages, from the evidence in the; case, sustained by the plaintiff, and if they believe from the evidence in the case that the engineer in charge of the engine saw the signal made by the plaintiff and others at Greenwood Springs station on May 31, 1907, if they from the evidence believe there was a signal made to stop, or if the engineer in charge of the engine on the evening of May 31, 1907, at Greenwood Springs station, could by the exercise of ordinary care and diligence have seen the signal to stop1, and understood the signal, and failed to stop' the train, and that the failure to-stop was due to the eapriciousness or recklessness or malice or wilfulness on the part of the said engineer, then the jury may assess the defendant with punitive damages; that is, damages by way of punishment to compel the defendant to have due regard for the rights of the public, and return a verdict for the plaintiff, in any sum not exceeding the amount of damages sued for.” The giving of this instruction was fatal error:
First. Because it submitted to the jury the question of whether the engineer obeyed a signal made by persons other than the station agent. TJnder the evidence the only signal the engineer was required to obey was one made by the station-agent. There was no evidence that appellant was accustomed to stop its trains on signals made by intending passengers; but, on the contrary, it maintained at this station a depot, with an agent in charge thereof, whose duty it was to signal trains when it became necessary for trains to stop. A railroad company is-entitled to have the star-ting and stopping of its trains regulated by its employes, and when it maintains an agent at a flag station, whose duty it is to signal trains when it becomes necessary for same to stop at such station, the failure of its engineer to-
Second. Because it permitted tbe jury to award punitive ■damages if tbe engineer “could by tbe exercise of ordinary care and diligence bave seen tbe signal to stop.” Railroad Company v. Lanning, 83 Miss. 161, 35 South. 417.
Reversed and' remanded.