note.”

of the case and to determine accord- in the case at bar, makes no com. ingly.

plaint of mental or bodily suffering, In the case of Mobile & O. R. Co. nor of danger from exposure to the v. McArthur, 43 Miss. 180, the pas- weather or otherwise. senger on a freight train, which was The court then discussed previous not regularly, but only occasionally, cases and concluded the opinion at used to carry passengers, paid his page 320 of 50 Miss., in the followpassage money. The train carried ing language: “Upon the evidence, him 5 miles beyond his destination, the plaintiff acquired a technical and put him off at another station, right of recovery, but the rule as to and he had to walk back to his des- punitive damages does not apply. tination. He had chronic rheuma. Hence, although the damages are tism and was exposed to the weath- only nominal, nevertheless the cause er. Held, on demurrer to the evi- of action ought to have been susdence, that the passenger was en- tained, and a writ of inquiry awardtitled to recover.

ed, to be executed under the approIn the case of Thompson v. New priate directions of the court in Orleans, J. & G. R. Co. 50 Miss. 315, such a case, as to which, vide 2 Redf. 19 Am. Rep. 12, plaintiff went Railways, 220 et seq.; 2 Shearm. & aboard the cars, paid fare to Bogue Redf. Neg. 646 et seq. ; Sedgw. DamChitto, and the train did not stop, ages, 90, 128, note, 413, note, 665, but ran past for 2 miles to a water tank. Thompson demanded the I submit that this authority is a train should return. The conductor parallel

parallel authority with the case was courteous and polite, and sub- here, with the single difference that mitted the option to Thompson to

Thompson was not injured, while in leave the train at the tank or to ride the present case the man was into the next station and return to jured to such an extent that he sufBogue Chitto free of charge.

fered intensely for five days, and

then died. Thompson accepted the latter alternative and returned to the station,

In White v. Illinois C. R. Co. 97 but the train went beyond the sta

Miss. 91, 55 So. 593, this court, tion, and landed him 150 yards be- speaking through Judge Anderson, yond, and he voluntarily jumped off

at page 99 of the Mississippi Report without injury. On the trial coun

of this case, defined the duty which

the carrier owed to the passenger at sel for the defendant demurred to the testimony, and the trial court

common law as follows: “Accordsustained the demurrer, and this ing to the common law the carrier court held that it was error; that

owes the passenger the utmost dethe right of action was complete, less of the character of the car or

gree of care for his safety, regardeven though no personal injury was

train on which he is being carried. sustained. At page 318 of 50 Miss.,

There is no distinction in this rein the opinion, the court said: “It is insisted, in behalf of the plaintiff spect between freight trains and

regular passenger trains, provided in error, that upon the facts the

such freight trains are used for the right of action is absolute and com

carriage of passengers. At complete; and counsel press the distinc

mon law there is only one class of tion between this right and the

trains in the operation of which the amount of damages which may be

carrier is relieved from the exercise assessed by the jury. On the other

of the utmost degree of care for the hand, it is urged that this is, on its

safety of persons traveling on such face, a speculative prosecution, and trains, and that is those trains which ought not to be sustained by the are not intended for and which do courts."

not carry passengers. The court cited Heirn v. M'Caugh- In Dorrah v. Illinois C. R. Co. 65 an, 32 Miss. 17, 66 Am. Dec. 588, Miss. 14, 7 Am. St. Rep. 629, 3 So. supra, and then said: “Thompson, 36, this court held that a railroad

(119 Mi88. 473, 81 80. 163.) company is liable to a passenger for punishment for recklessness, wilfulactual damages for failing to an- ness, or insult." nounce or give notice in some way This has been cited with approval of the station, and to stop its trains in a large number of cases in this long enough for him to get off with court. See authorities cited in the safety.

second syllabus of the reprint MisIn Georgia P. R. Co. v. West, 66 sissippi Reports.

. Miss. 310, 6 So. 207, 4 Am. Neg. Cas. In King v. Yazoo & M. Valley R. 298, this court held that ordinarily Co. 87 Miss. 270, 39 So. 810, this the employees in charge of the train court held that a passenger, by do not owe the duty to a passenger alighting from a slowly moving railon board to stay longer than for road train, is not, under all circumthem to sufficiently and safely and stances, guilty of such contributory conveniently get off; but even after negligence per se as will preclude the usual stop it is negligent for him from recovering from the railthem to start the train if they know, road company for injuries. or have reason to believe, that a

The degree of care required and passenger in the act of alighting, or

liability as to passengers boarding that the passenger intending to or alighting from vehicles is stated alight, from age or infirmity re- in 10 C. J. p. 924, § 1348, as follows: quires a longer time than usual to

“The carrier is bound to exercise alight. It was also held in this case care in securing the safety of the that the court properly refused to

passenger while boarding and alightinstruct that it was contributory ing from its cars or other conveynegligence per se for a passenger to ances, and the degree of care realight from a train on the platform quired in the discharge of this duty of the station if the train is in mo

is the highest care, or the care which tion, where the only evidence of the

a very prudent person would use train's failure to stop is that it was under the circumstances; that is, barely moving, and this is coupled that high degree of care which is with the statement that the passen- required with reference to the transger was being assisted to alight by portation of passengers. And an employee in charge of the train. where a carrier misleads a passenThe instruction refused in that case

ger with reference to the time, the read as follows: “(8) The court in- place, and the safety of boarding or structs the jury that, if they believe alighting, it is liable for the injuries from the evidence that plaintiff at- sustained; but the carrier is not an tempted to get off the train of de

insurer of the passenger's safety in fendant onto the platform at Bur- this regard, and if the carrier, dette while the train was in motion, through its agents and employees, then the plaintiff's own negligence

uses proper care for the safety and contributed to occasion her falling, protection of a boarding or an and they will find for the defend- alighting passenger, it is not liable ant.”

for injuries that he may sustain In Chicago, St. L. & N. 0. R. Co.

while getting on or leaving the car, v. Scurr, 59 Miss. 456, 42 Am. Rep. particularly where he does so by 373, this court laid down the rule

an unusual mode of ingress or of the degree of responsibility as egress, nor is it liable for injuries follows: “Common carriers are received by him after it has persubjected by law to a degree of re- formed its duty, and he has safely sponsibility unknown to other call- left the car.” ings, but the measure of damages In 10 C. J. at page 843, § 1283, the for nonperformance of their duties rule is laid down that, in case of the is the same as in other pursuits, to breach by the carrier of its duty or wit, compensation for carelessness contract to transport a passenger, or thoughtlessness, and exemplary the latter ordinarily has a choice of

remedies, and may sue either in tort prudence, and foresight, and it or for breach of the contract. would be misleading to say that

In 10 C. J. p. 854, the rule as to ordinary and reasonable care was the exercise of care is stated as fol- sufficient to relieve the carrier from lows: “Sec. 1295. 2. Statements of the charge of negligence, although it Care Required. a. In General. Al- has been held that, in view of the though the classification of negli- modern tendency to refuse to recoggence by degrees has been con- nize degrees of negligence, the care demned by high authority, various required of the carrier may be exforms of expression have been used pressed by the terms ‘due care,' 'reato indicate the degree of care, skill, sonable care,' or 'ordinary care,' parand diligence which a carrier of ticularly in regard to dangers which passengers must exercise in trans- are not usually incident to the mode porting a passenger, such as that it of conveyance used. A railroad must exercise 'the highest degree of company owes to a passenger a difcare, prudence, and foresight,' 'the ferent and a higher degree of care greatest possible care and diligence, than to mere trespassers or stran'the utmost care and diligence,' or gers, or to travelers at highway 'extraordinary care and caution. crossings, or to one of its servants." In the proper use of the term, how- In 6 Cyc. 585, it is stated that ever, 'negligence' is simply the fail- where a ticket is sold on a particular ure to use the amount of care, skill, train for a specified destination, or and diligence required by the nature

a passenger on a train paid the conof the undertaking and the circum- ductor for transportation to a specistances of the case, and speaking in fied destination, the carrier is under this sense of the degree of care re- obligation to stop the train at that quired of the carrier of passengers point to allow the passenger to which has intrusted to it the per- alight, and a refusal to carry him on sonal safety of the passenger, it is that train to such destination will evident that, whatever form of ex- be a breach of the contract. pression is used, the skill, care, and At page 586, 6 Cyc., heading, diligence should be apportioned to “Duty to Stop Train at Platform, the nature and risk of the under- it is said: “The carrier should stop taking, in view of the nature of the the train at the usual platform for means of conveyance employed, and discharging passengers at the place sometimes involves custom

and

of destination, and cannot require knowledge, actual or attributable to

the passenger to alight at an unusual one or the other of the parties, al- or unsuitable place. It is also obthough it has been held that the de- ligatory that the train be stopped gree of care required under par- for a reasonable length of time to ticular circumstances and condi

allow passengers, in the exercise of tions cannot be lessened by the car

due diligence, to get off without danrier's custom in regard to particular ger." acts. Ordinary care imports all the In 6 Cyc. 594, heading, "Liability care which the peculiar circum- as Affected by Means of Transportastances of the place or occasion rea- tion,” it is said: "So large a prosonably require, and this will be in- portion of the transportation of pascreased or diminished as danger of sengers is by means of railroads accident or injury is increased or

operated by steam that the general diminished. Therefore, while it

rules of liability, as developed in the might be proper in one sense to say decided cases, have reference to such that the care required is that which carriage, and no particular discusan ordinarily careful and prudent sion of the cases, further than that person would exercise in such busi

given in the preceding paragraphs. ness, yet, on the other hand, the is necessary. Undoubtedly the same nature of the business requires the rules govern the liability of carriers use of a very high degree of care, operating steam vessels. In the op(119 Mi88. 473, 81 So. 163.) eration of freight trains, however, was again stopped by the ringing of somewhat greater peril is involved the bell to let off other passengers, to passengers riding thereon than is presented a case for the jury as to involved in the operation of pas- the negligence of stopping too short senger trains.

Nevertheless, the a time. rule of liability, that is, the require- In the case of Fore v. Alabama & ment as to the exercise of a high V. R. Co. 87 Miss. 211, 39 So. 493, degree of care and foresight, is the 690, this court held that a circuit same. The passenger, by assum- judge may grant a new trial if the ing to ride by this means of convey- verdict be against the weight of the ance, does not relieve the carrier evidence, but is warranted in grantfrom the obligation to exercise great ing either party a peremptory incare for his safety."

struction only when the evidence is In 6 Cyc. p. 595, heading “Stage- favorable to either party, conceding coaches," it is said: "The principles it to be true, discloses no legal right governing the liability of passenger in him, or fails to maintain the issue carriers seem first to have been laid in his favor. down in stagecoaches cases, and it Under the facts in the present was early settled that the owner of case there was ample evidence to a stagecoach is not an insurer of the warrant the jury in finding that the safety of his passengers, and is lia- driver was careless and, indeed, it ble only in case of negligence. But seems to me that this very carelessthe carrier by stagecoach is bound ness of the driver resulted in the to exercise the greatest care and injury to the deceased. The driver diligence, and is liable for the slight not only failed to stop, but he did not est negligence of himself or his serv- have his car under the control that ants."

it should have been under the cirIn Alabama & V. R. Co. v. Hanes, cumstances. If the truck was only 69 Miss. 160, 13 So. 246, this court going 3 or 4 miles per hour, and if laid down the rule that, where the he had had his appliances properly declaration contains no specifica- adjusted to control the car, it could tion of the nature and kind of dam

have been stopped in much less disage claimed, the rule that only such tance than 15 feet. as actually and proximately arise The majority of the court say out of the act complained of can be that the negligence of the deceased recovered does not apply in actions in getting off a moving car was the for tort.

proximate cause of his death. In In New Orleans, J. & G. N. R. Co. my opinion the proximate cause of v. Allbritton, 38 Miss. 242, 75 Am. his death was being dragged and Dec. 98, it is held that a railroad crushed by the truck, which the apcompany impliedly warrants that its pellant negligently failed to stop. If engineers and other employees are the car had been stopped, in the dispossessed of due skill, are competent charge of the duty of the appellant and faithful, and the railroad com- to stop it, the injury would not have pany is liable under all circum- occurred at all. It was not the fall stances for injuries caused by their that killed the deceased. It was the negligence.

moving truck, being moved by the In Toler v. Yazoo & M. Valley R. negligence of the appellant. At Co. – Miss. 31 So. 788, a case most, the deceased was guilty only where the plaintiff's testimony of contributory negligence. His fall showed that she went immediately contributed to the injury, but was to the step of the car when the sta- not the immediate cause of his intion was announced, and it being jury. The sections of Hemingway's dropped, and she thinking the train Code above referred to should conhad stopped, got off, and was in- trol this case. jured, the train being in motion, the The cases referred to in the matestimony that thereafter the train jority opinion are not analogous to

Sick per

the present case, and all of them rec- was sick and needed assistance to ognize a right of nominal damages get from the platform, and that the for the failure to stop the train. I conductor knew he was unable to cannot see how the injury in the get off without assistance. There present case can be disconnected was a verdict for $3,275 in that case. from the negligence of the company Speaking of the phase of the eviin failing to stop the truck at the dence bearing on the plaintiff's sickproper place, and also for the failure ness, and the carrier's duty to sick to have the machinery of the truck persons, the court said: "Railroad adjusted so as to bring it to an im- cars are not traveling hospitals, nor mediate stop in case of necessity. their employees nurses.

In the case of Bardwell v. Mobile sons have the right to enter the cars & O. R. Co. 63 Miss. 574, 56 Am. of a railroad company; as common Rep. 842, the carrier was under no carriers of passengers, they cannot duty to stop its car at the place prevent their entering their cars. where the plaintiff jumped off, and If they are incapable of taking care the conductor had no right to bind of themselves, they should have atthe company in advising him to

tendants along to care for them, or jump, the company being only bound to render them such assistance as to stop at the station to which plain- they may require in the cars, and to tiff had bought a ticket.

assist them from the cars at the In the case of Collins v. Southern point of their destination.” R. Co. 89 Miss. 375, 42 So. 167, there This presents an entirely different was an attempt by a person to board case from the present controversy, a moving train. Of course, the rail- and the action was not maintained road company was not responsible because of the want of duty on the for his boarding a moving train, or part of the carrier to look after a undertaking to disembark before the sick person.

. train stopped.

Holden, J., concurs in this dissent-
In the case of New Orleans, J. &
G. N. R. Co. v. Statham, 42 'Miss. ing opinion.

.
607, 97 Am. Dec. 478, the court ex- A suggestion of error having been
pressly recognized the duty of the filed the following Per Curiam
railroad company to stop the train opinion was handed down April 21,
sufficiently long for passengers to 1919 (- Miss. - 81 So. 406):
get off. At page 614 of 42 Miss. the Suggestion of error overruled.
court said: “They should have the

Holden, J., dissenting : stations announced; they should stop

I think the suggestion of error the train sufficiently long for the

should be sustained because the mapassengers for each station to get jority decision in this case is clearoff. When this is done, their duty ly contrary to well-settled principles to the passengers is performed.”

of law. I wish to point out very The case was reversed because of briefly the chief error in the decithe instructions of the court. The

sion. court said in that opinion, at page

The majority opinion lays down 629, of 42 Miss.: "We would not

"We would not the rule that where the negligence disturb a verdict for damages, where

of the injured person is the proxit was not apparent to us that the

imate cause of the injury no recovjury had either misapplied the law,

ery can be had, even though the or misunderstood the facts, or had proof establishes that the injury rebeen influenced by their prejudices sulted in whole or in part from deor passions, rather than by an ob- fendant's negligence which proxi. servance of the law and the facts of mately contributed to the injury. In the case.”

other words, the main opinion erThe contention in that case was, roneously announces the rule to be or rather the suit was founded upon, that the defendant is free from all the proposition that the plaintiff liability, even though its negligence