of the case and to determine accordingly. In the case of Mobile & O. R. Co. v. McArthur, 43 Miss. 180, the passenger on a freight train, which was not regularly, but only occasionally, used to carry passengers, paid his passage money. The train carried him 5 miles beyond his destination, and put him off at another station, and he had to walk back to his destination. He had chronic rheumatism and was exposed to the weather. Held, on demurrer to the evidence, that the passenger was entitled to recover. In the case of Thompson v. New Orleans, J. & G. R. Co. 50 Miss. 315, 19 Am. Rep. 12, plaintiff went aboard the cars, paid fare to Bogue Chitto, and the train did not stop, but ran past for 2 miles to a water tank. Thompson demanded the train should return. The conductor was courteous and polite, and submitted the option to Thompson to leave the train at the tank or to ride to the next station and return to Bogue Chitto free of charge. Thompson accepted the latter alternative and returned to the station, but the train went beyond the station, and landed him 150 yards beyond, and he voluntarily jumped off without injury. On the trial counsel for the defendant demurred to the testimony, and the trial court sustained the demurrer, and this court held that it was error; that the right of action was complete, even though no personal injury was sustained. At page 318 of 50 Miss., in the opinion, the court said: "It is insisted, in behalf of the plaintiff in error, that upon the facts the right of action is absolute and complete; and counsel press the distinction between this right and the amount of damages which may be assessed by the jury. On the other hand, it is urged that this is, on its face, a speculative prosecution, and ought not to be sustained by the courts." The court cited Heirn v. M'Caughan, 32 Miss. 17, 66 Am. Dec. 588, supra, and then said: "Thompson, in the case at bar, makes no complaint of mental or bodily suffering, nor of danger from exposure to the weather or otherwise." The court then discussed previous cases and concluded the opinion at page 320 of 50 Miss., in the following language: "Upon the evidence, the plaintiff acquired a technical right of recovery, but the rule as to punitive damages does not apply. Hence, although the damages are only nominal, nevertheless the cause of action ought to have been sustained, and a writ of inquiry awarded, to be executed under the appropriate directions of the court in such a case, as to which, vide 2 Redf. Railways, 220 et seq.; 2 Shearm. & Redf. Neg. 646 et seq.; Sedgw. Damages, 90, 128, note, 413, note, 665, note." I submit that this authority is a parallel authority with the case here, with the single difference that Thompson was not injured, while in the present case the man was injured to such an extent that he suffered intensely for five days, and then died. In White v. Illinois C. R. Co. 97 Miss. 91, 55 So. 593, this court, speaking through Judge Anderson, at page 99 of the Mississippi Report of this case, defined the duty which the carrier owed to the passenger at common law as follows: "According to the common law the carrier owes the passenger the utmost degree of care for his safety, regardless of the character of the car or train on which he is being carried. There is no distinction in this re spect between freight trains and regular passenger trains, provided such freight trains are used for the carriage of passengers. At common law there is only one class of trains in the operation of which the carrier is relieved from the exercise of the utmost degree of care for the safety of persons traveling on such trains, and that is those trains which are not intended for and which do not carry passengers." In Dorrah v. Illinois C. R. Co. 65 Miss. 14, 7 Am. St. Rep. 629, 3 So. 36, this court held that a railroad (119 Miss. 473, 81 So. 163.) company is liable to a passenger for actual damages for failing to announce or give notice in some way of the station, and to stop its trains long enough for him to get off with safety. In Georgia P. R. Co. v. West, 66 Miss. 310, 6 So. 207, 4 Am. Neg. Cas. 298, this court held that ordinarily the employees in charge of the train do not owe the duty to a passenger on board to stay longer than for them to sufficiently and safely and conveniently get off; but even after the usual stop it is negligent for them to start the train if they know, or have reason to believe, that a passenger in the act of alighting, or that the passenger intending to alight, from age or infirmity requires a longer time than usual to alight. It was also held in this case that the court properly refused to instruct that it was contributory negligence per se for a passenger to alight from a train on the platform of the station if the train is in motion, where the only evidence of the train's failure to stop is that it was barely moving, and this is coupled with the statement that the passenger was being assisted to alight by an employee in charge of the train. The instruction refused in that case read as follows: "(8) The court in'(8) The court instructs the jury that, if they believe from the evidence that plaintiff attempted to get off the train of defendant onto the platform at Burdette while the train was in motion, then the plaintiff's own negligence contributed to occasion her falling, and they will find for the defend ant." In Chicago, St. L. & N. O. R. Co. v. Scurr, 59 Miss. 456, 42 Am. Rep. 373, this court laid down the rule of the degree of responsibility as follows: "Common carriers are subjected by law to a degree of responsibility unknown to other callings, but the measure of damages for nonperformance of their duties is the same as in other pursuits, to wit, compensation for carelessness or thoughtlessness, and exemplary punishment for recklessness, wilfulness, or insult." This has been cited with approval in a large number of cases in this court. See authorities cited in the second syllabus of the reprint Mississippi Reports. In King v. Yazoo & M. Valley R. Co. 87 Miss. 270, 39 So. 810, this court held that a passenger, by alighting from a slowly moving railroad train, is not, under all circumstances, guilty of such contributory negligence per se as will preclude him from recovering from the railroad company for injuries. The degree of care required and liability as to passengers boarding or alighting from vehicles is stated in 10 C. J. p. 924, § 1348, as follows: "The carrier is bound to exercise care in securing the safety of the passenger while boarding and alighting from its cars or other conveyances, and the degree of care required in the discharge of this duty is the highest care, or the care which a very prudent person would use under the circumstances; that is, that high degree of care which is required with reference to the transportation of passengers. And where a carrier misleads a passenger with reference to the time, the place, and the safety of boarding or alighting, it is liable for the injuries sustained; but the carrier is not an insurer of the passenger's safety in this regard, and if the carrier, through its agents and employees, uses proper care for the safety and protection of a boarding or an alighting passenger, it is not liable for injuries that he may sustain while getting on or leaving the car, particularly where he does so by an unusual mode of ingress or egress, nor is it liable for injuries received by him after it has performed its duty, and he has safely left the car." In 10 C. J. at page 843, § 1283, the rule is laid down that, in case of the breach by the carrier of its duty or contract to transport a passenger, the latter ordinarily has a choice of remedies, and may sue either in tort or for breach of the contract. prudence, and foresight, and it would be misleading to say that ordinary and reasonable care was sufficient to relieve the carrier from the charge of negligence, although it has been held that, in view of the modern tendency to refuse to recognize degrees of negligence, the care required of the carrier may be expressed by the terms 'due care,' 'reasonable care,' or 'ordinary care,' particularly in regard to dangers which are not usually incident to the mode of conveyance used. A railroad company owes to a passenger a different and a higher degree of care than to mere trespassers or strangers, or to travelers at highway crossings, or to one of its servants." In 10 C. J. p. 854, the rule as to the exercise of care is stated as follows: "Sec. 1295. 2. Statements of Care Required. a. In General.-Although the classification of negligence by degrees has been condemned by high authority, various forms of expression have been used to indicate the degree of care, skill, and diligence which a carrier of passengers must exercise in transporting a passenger, such as that it must exercise 'the highest degree of care, prudence, and foresight,' 'the greatest possible care and diligence,' 'the utmost care and diligence,' or 'extraordinary care and caution.' In the proper use of the term, however, 'negligence' is simply the failure to use the amount of care, skill, and diligence required by the nature of the undertaking and the circumstances of the case, and speaking in this sense of the degree of care required of the carrier of passengers which has intrusted to it the personal safety of the passenger, it is evident that, whatever form of expression is used, the skill, care, and diligence should be apportioned to the nature and risk of the undertaking, in view of the nature of the means of conveyance employed, and sometimes involves involves custom and knowledge, actual or attributable to one or the other of the parties, although it has been held that the degree of care required under particular circumstances and conditions cannot be lessened by the carrier's custom in regard to particular acts. Ordinary care imports all the care which the peculiar circumstances of the place or occasion reasonably require, and this will be increased or diminished as danger of accident or injury is increased or diminished. Therefore, while it might be proper in one sense to say that the care required is that which an ordinarily careful and prudent person would exercise in such business, yet, on the other hand, the nature of the business requires the use of a very high degree of care, In 6 Cyc. 585, it is stated that where a ticket is sold on a particular train for a specified destination, or a passenger on a train paid the conductor for transportation to a specified destination, the carrier is under obligation to stop the train at that point to allow the passenger to alight, and a refusal to carry him on that train to such destination will be a breach of the contract. At page 586, 6 Cyc., heading, "Duty to Stop Train at Platform," it is said: "The carrier should stop the train at the usual platform for discharging passengers at the place of destination, and cannot require the passenger to alight at an unusual or unsuitable place. It is also obligatory that the train be stopped for a reasonable length of time to allow passengers, in the exercise of due diligence, to get off without danger." In 6 Cyc. 594, heading, "Liability as Affected by Means of Transportation," it is said: "So large a proportion of the transportation of pas sengers is by means of railroads operated by steam that the general rules of liability, as developed in the decided cases, have reference to such carriage, and no particular discussion of the cases, further than that given in the preceding paragraphs. is necessary. Undoubtedly the same rules govern the liability of carriers operating steam vessels. In the op (119 Miss. 473, 81 So. 163.) eration of freight trains, however, somewhat greater peril is involved to passengers riding thereon than is involved in the operation of passenger trains. Nevertheless, the rule of liability, that is, the requirement as to the exercise of a high degree of care and foresight, is the same. The passenger, by assuming to ride by this means of conveyance, does not relieve the carrier from the obligation to exercise great care for his safety." In 6 Cyc. p. 595, heading "Stagecoaches," it is said: "The principles governing the liability of passenger carriers seem first to have been laid down in stagecoaches cases, and it was early settled that the owner of a stagecoach is not an insurer of the safety of his passengers, and is liable only in case of negligence. But the carrier by stagecoach is bound to exercise the greatest care and diligence, and is liable for the slightest negligence of himself or his servants." In Alabama & V. R. Co. v. Hanes, 69 Miss. 160, 13 So. 246, this court laid down the rule that, where the declaration contains no specification of the nature and kind of damage claimed, the rule that only such as actually and proximately arise out of the act complained of can be recovered does not apply in actions for tort. In New Orleans, J. & G. N. R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98, it is held that a railroad. company impliedly warrants that its engineers and other employees are possessed of due skill, are competent and faithful, and the railroad company is liable under all circumstances for injuries caused by their negligence. In Toler v. Yazoo & M. Valley R. Co. Miss. 31 So. 788, a case where the plaintiff's testimony showed that she went immediately to the step of the car when the station was announced, and it being dropped, and she thinking the train had stopped, got off, and was injured, the train being in motion, the testimony that thereafter the train was again stopped by the ringing of the bell to let off other passengers, presented a case for the jury as to the negligence of stopping too short a time. In the case of Fore v. Alabama & V. R. Co. 87 Miss. 211, 39 So. 493, 690, this court held that a circuit judge may grant a new trial if the verdict be against the weight of the evidence, but is warranted in granting either party a peremptory instruction only when the evidence is favorable to either party, conceding it to be true, discloses no legal right in him, or fails to maintain the issue in his favor. Under the facts in the present case there was ample evidence to warrant the jury in finding that the driver was careless and, indeed, it seems to me that this very carelessness of the driver resulted in the injury to the deceased. The driver not only failed to stop, but he did not have his car under the control that it should have been under the circumstances. If the truck was only going 3 or 4 miles per hour, and if he had had his appliances properly adjusted to control the car, it could have been stopped in much less distance than 15 feet. The majority of the court say that the negligence of the deceased in getting off a moving car was the proximate cause of his death. In my opinion the proximate cause of his death was being dragged and crushed by the truck, which the appellant negligently failed to stop. If the car had been stopped, in the discharge of the duty of the appellant to stop it, the injury would not have occurred at all. It was not the fall that killed the deceased. It was the moving truck, being moved by the negligence of the appellant. most, the deceased was guilty only of contributory negligence. His fall contributed to the injury, but was not the immediate cause of his injury. The sections of Hemingway's Code above referred to should control this case. At The cases referred to in the majority opinion are not analogous to the present case, and all of them recognize a right of nominal damages for the failure to stop the train. I cannot see how the injury in the present case can be disconnected from the negligence of the company in failing to stop the truck at the proper place, and also for the failure to have the machinery of the truck adjusted so as to bring it to an immediate stop in case of necessity. In the case of Bardwell v. Mobile & O. R. Co. 63 Miss. 574, 56 Am. Rep. 842, the carrier was under no duty to stop its car at the place where the plaintiff jumped off, and the conductor had no right to bind the company in advising him to jump, the company being only bound to stop at the station to which plaintiff had bought a ticket. In the case of Collins v. Southern R. Co. 89 Miss. 375, 42 So. 167, there was an attempt by a person to board a moving train. Of course, the railroad company was not responsible for his boarding a moving train, or undertaking to disembark before the train stopped. In the case of New Orleans, J. & G. N. R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478, the court expressly recognized the duty of the railroad company to stop the train sufficiently long for passengers to get off. At page 614 of 42 Miss. the court said: "They should have the stations announced; they should stop the train sufficiently long for the passengers for each station to get off. When this is done, their duty to the passengers is performed." The case was reversed because of the instructions of the court. The court said in that opinion, at page 629, of 42 Miss.: "We would not disturb a verdict for damages, where it was not apparent to us that the jury had either misapplied the law, or misunderstood the facts, or had been influenced by their prejudices or passions, rather than by an observance of the law and the facts of the case." The contention in that case was, or rather the suit was founded upon, the proposition that the plaintiff was sick and needed assistance to get from the platform, and that the conductor knew he was unable to get off without assistance. There was a verdict for $3,275 in that case. Speaking of the phase of the evidence bearing on the plaintiff's sickness, and the carrier's duty to sick persons, the court said: "Railroad cars are not traveling hospitals, nor their employees nurses. Sick persons have the right to enter the cars of a railroad company; as common carriers of passengers, they cannot prevent their entering their cars. If they are incapable of taking care of themselves, they should have attendants along to care for them, or to render them such assistance as they may require in the cars, and to assist them from the cars at the point of their destination." This presents an entirely different case from the present controversy, and the action was not maintained because of the want of duty on the part of the carrier to look after a sick person. Holden, J., concurs in this dissenting opinion. A suggestion of error having been filed the following Per Curiam opinion was handed down April 21, 1919 (Miss., 81 So. 406): Suggestion of error overruled. Holden, J., dissenting: I think the suggestion of error should be sustained because the ma jority decision in this case is clearly contrary to well-settled principles of law. I wish to point out very briefly the chief error in the deci sion. The majority opinion lays down the rule that where the negligence of the injured person is the prox imate cause of the injury no recov ery can be had, even though the proof establishes that the injury resulted in whole or in part from defendant's negligence which proximately contributed to the injury. In other words, the main opinion erroneously announces the rule to be that the defendant is free from all liability, even though its negligence |