64 So. 158 | Miss. | 1913
delivered the opinion of the court.
Appellee, R. J. Smith, a resident of Amite corinty, bn April 11, 1911, left G-loster for New Orleans on a round trip excursion over the Yazoo & Mississippi Valley Railroad. ' On his way to New Orleans, and while in, that ;city he was drinking.' He was still under the influence of liqJ uor when he started' on his return trip to Gloster on April 13, 1911, and he continued drinking and was moving about on the train. According to his testimony, at about eight o’clock in the evening, when the train was just north of Burnside, Louisiana, he endeavored to go from one passenger coach to another over an open p'lat-from, and accidentally fell, or was in some manner pushed, off the train, which was then running at about thirty miles an hour. He sustained painful, though not serious, injuries. He sued the railroad company for thirty thousand dollars, and the jury returned a verdict' in his favor for three hundred dollars. Upon' the trial, appellee claimed that appellant company was negligent in failing to stop the train and go hack for' the purpose of finding and properly caring for him.
It appears from the testimony that the train had traveled some miles from the point 'where' it was. when ap-pellee was first missed before it was .definitely determined that he was not aboard. The conductor then declined to back his train, stating that it would endanger the lives of a large number of passengers; that it was impracticable to do so because of the distance and because. it would be necessary for the flagman to walk at a certain space ahead of the train as it was being backed; and that the quickest way to reach and relieve appellee was to notify other trains following about where he had fallen. The train consisted of some seventeen or eighteen coaches and had a great many passengers; the number being estimated at one thousand. Notice was given through the chief train dispatcher, and instructions were, telegraphed for all trains to look out for appellee.
We do not see that the action of the conductor in declining, at the time and under the circumstances, to stop and hack Ms train amounted to negligence. It is the duty of the servants of a railroad company to do all they reasonably can to relieve the injury of a passenger after an accident. This rule in its application must be controlled by the facts in each particular case.
Considering all of the facts and circumstances of this case, and -bearing in mind the necessity of safely operating the excursion train of many coaches and with a large number of passengers, we are satisfied that the servants of appellant did not fail in their duty toward appellee, but that they did what they reasonably could for Ms relief.
The facts make this a very different case from that of Railroad Co. v. Byrd, 89 Miss. 308, 42 So. 286, and the rule therein announced that the railroad company would be liable to a passenger who fell or was thrown from a train through his own negligence, for damages because of the neglect of the company to give such passenger attention after the accident, will not apply to this case.
The peremptory instruction asked by appellant should have been given.
Reversed, and judgment here for appellant.
Reversed.
