White v. Illinois Cent. R. Co

"Whereas, certain railroad companies, doing business in this state, now refuse to carry passengers upon their freight trains, on account of the strict legal liability attaching to carriers of passengers; and whereas, such refusal on the part of said railroads to carry passengers upon their freight trains, results, generally, in great inconvenience, annoyance and loss to the citizens located upon the line of said roads: Therefore,

"Section 1. Be it enacted by the Legislature of the state of Mississippi, that all railroad companies, running trains in this state, shall hereafter carry upon their freight trains all passengers who shall desire to ride thereon, and who shall conform to the rules of said railroads applying to passengers upon passenger trains in relation to purchase of tickets, and so forth, and such passengers upon freight trains shall be furnished with the best accommodations that said freight trains may have at that time that such passengers may apply for passage: Provided, that railroads shall not be required to furnish passengers upon freight trains any additional accommodations to those which freight trains ordinarily have.

"Sec. 2. Be it further enacted-That, in case of damage or injury to any passenger or passengers, upon any freight train, the railroad company shall not be liable therefor, except upon proof of fraud, malice or gross negligence on the part of the company, its agents or employees: Provided, that the provisions of this section shall not apply to 'mixed' or 'accommodation' trains, so called, which are now run for the accommodation of both passengers and freight.

"Sec. 3. Be it further enacted-That any railroad company who shall refuse to carry upon any freight train, any person applying for passage thereon, who shall conform to the rules of the railroad prescribed for passengers upon passenger trains, shall forfeit and pay to the person so refused the sum of fifty dollars, to be recovered by action before any court of competent jurisdiction.

"Sec. 4. Be it further enacted-That the provisions of this act shall not apply to through freight trains run by telegraphic order."

This statute was revised and brought forward into the Code of 1880, forming section 1054 of that Code, which appears in the same language in section 3557 of the Code of 1892, and section 4054, Code of 1906, which is as follows: "Every railroad company shall be liable for all damages which may be sustained. by any person in consequence of the neglect or mismanagement of any of its agents, engineers, or clerks, or for the mismanagement of its engines; but for injury to any passenger upon any freight train not being intended for both passengers and freight, the company shall not be liable except for the gross negligence or carelessness of its servants." In Perkins v. Railroad Co., 60

White v. Illinois Cent. R. Co

Miss. 726, Judge Campbell, who prepared the original draft of the Code of 1880, speaking for the court, said: "The train on which the appellant was a trespasser was a 'freight train,' not being intended for both passengers and freight, within the meaning of section 1054 of the Code of 1880, and the action of the circuit court upon the instructions was correct. The latter part of that section is a substitute for section 2 of the act of March 15, 1876 (Acts 1876, p. 265), which employed the terms 'mixed' or 'accommodation' trains 'run for the accommodation of both passengers and freight. A train which is strictly a freight train, with only the appliances of such a train, on which persons are not sought to be induced to take passage by the offer of other accommodations than are afforded by freight trains, cannot be said to be intended for both passengers and freight, although all persons may become passengers by going into the conductor's caboose. They who take passage on such a train cannot expect, and have no right to demand, the conveniences and attention required with respect to passenger trains or those intended by the carrier for both freight and passengers."

It will be noted that the court says in that case that the latter part of section 1054, Code of 1880, is a substitute for section 2 of the act of 1876, supra. In the case of I. C. R. R. Co. v. Trail, 25 South. 863, the court speaks of the train on which the injury occurred as a through freight train. We have examined. the record in that case, and find that it was a freight train which did not stop at all stations; but the appellee, Trail, testified, that it carried passengers, tickets were sold for it, and he paid the conductor on this occasion because he had not time to purchase a ticket, and that it had attached to it a regular passenger caboose. The court held that the railroad was only liable for gross negligence because the train in question was not "designed to carry passengers." We understand the court to hold, in Perkins &. Railroad, supra, that the proviso to section 2 of the act of 1876 means the same thing as the latter part of section 1054, Code of 1880 (section 3557, Code of 1892, and section 4054, Code 1906). The evident purpose of the Legislature in the adoption of this statute was to relieve railroad companies from the exercise of the highest degree of care as to passengers on all freight trains whatsoever, except "mixed or accommodation trains," which were left as at common law.

[4] Since the construction put on this statute in Perkins v. Railroad Company, supra, it has been twice re-enacted in the same language in the Codes of 1892 and 1906. The rule is that where a statute has been construed by the highest court of a state, and afterwards, re-enacted in substantially the same terms, the Legislature by such re-enactment adopts, along with the statute, such construction.

[5, 6] What is intended by the language "intended for both

White v. Illinois Cent. R. Co

passengers and freight," or "mixed or accommodation trains," which are synonymous in meaning? The court knows what a "mixed or accommodation train is, for everybody knows. It is a matter of common knowledge, of which the court takes judicial notice.

[7] In section 2 of the act of 1876, supra, the words "mixed,, or "accommodation" are put in quotations, and are referred to as "so-called," showing that it was a matter of general understanding at that time what class of trains was intended to be covored by the proviso to that section. A "mixed or accommodation train" is a train equipped and having the appliances and facilities suited for the carriage of passengers as well as freight. Its purpose and business is as much the one as the other. In its arrangements, the safety of passengers is as much looked to as the carriage of freight. It usually has two or more coaches for passengers, and separate compartments or coaches for the races, and a baggage compartment or car, etc., and runs on a regular schedule, and subordinates its freight business to the passenger business to the extent necessary to make connections with other passenger trains on its own line and those on connecting roads, and it stops opposite stations for the convenient ingress and egress of passengers.

[8] On the other hand, a freight train, not intended for both passengers and freight, or which is not a "mixed or accommodation train," in the meaning of this statute, is a regular freight train on which passengers are invited to travel, having for their own convenience a caboose, way car, or passenger coach attached but has none of the other equipment or appliances of a regular passenger train, beyond what all freight trains have, and in making its schedule does not make connection with other trains on its line or those of connecting carriers, if prevented by the proper handling of its freight business; in other words, a train on which a passenger business is subordinated to that of the carriage of freight-a train the paramount object of which is the carriage of freight, and not of passengers.

It might be in some cases a question of fact for the jury whether a given train is one intended for both passengers and freight in the meaning of this statute. But where the evidence shows without conflict, as it does in this case, that the train in question was not a "mixed or accommodation train," but a regular local freight train, carrying passengers as a mere incident, there is no question for the jury.

Affirmed.

ST. LOUIS, I. M. & S. Ry. Co. et al. v. PURIFOY.

(Supreme Court of Arkansas, June 5, 1911.)

[138 S. W. Rep. 631.]

Carriers Carriers of Passengers-Degree of Care Required.*The care required of railroad companies toward their passengers is the highest degree of care which a prudent and cautious man would exercise, and which is reasonably consistent with their mode of conveyance and the practical operation of their roads, and they are not bound to exercise the utmost diligence human skill and foresight can effect, consistent with the mode of conveyance, or liable for the slightest omission in this respect.

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Action by M. W. Purifoy against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judg ment for plaintiff, defendants appeal. Reversed and remanded.

W. E. Hemingway, E. B. Kinsworthy, Bridges, Wooldridge & Gantt, and J. H. Stevenson, for appellants.

M. S. Cobb, for appellee.

WOOD, J. This is an appeal from a judgment for $2,500, in favor of the appellee, for personal injuries alleged to have been received by him, while a passenger in a Pullman car from St. Louis to Hot Springs, by being thrown by a lurch or jerk of the train, whereby, as he was coming from the toilet room to the smoker and lavatory, he was thrown against the door of the toilet room and his neck injured. He claims to have a tubercular infection of the neck, which has made it necessary to have it lanced or operated upon several times, and that it has seriously impaired his health.

Appellant urges a reversal because the court gave the following prayer for instruction: "(1) The degree of care required by law of a railroad company for the safety of its passengers is the utmost diligence which human skill and foresight can affect, consistent with the mode of conveyance and the practicable operation of its railroads, and if injury occurs by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation or the mode of management at the time the damage occurs, the railroad companies are responsible; and in this case, if you believe from the evidence that plaintiff, while a passenger on defendant's train, and while in the exercise of reasonable care, was injured because of the failure of the defendant to use such care, as above defined, for his safety, then you should find for the plaintiff."

*See first foot-note of preceding case.

St. Louis, I. M. & S. Ry. Co. et al. v. Purifoy The specific objections made to the giving of the instruction are as follows: "(1) Because of the use of the words 'utmost diligence which human skill and foresight can effect,' instead of the highest degree of care which a prudent and cautious man would exercise.' (2) Because the word 'reasonably' is not used just precedent 'consistent,' so as to make the degree of diligence required reasonably consistent with the mode of conveyance and operation of the road. (3) Because of the use of the words 'slightest omission in regard to the highest perfection of all the appliances of transportation or the mode of management,' instead of the failure to use the highest degree of care which a prudent and cautious man would exercise, and which is reasonably consistent with the mode of conveyance and the practical operation of the road.'

999

"The care exacted of railway companies toward their passengers is the highest degree of care which a prudent and cautious man would exercise, and that which is reasonably consistent with their mode of conveyance and the practical operation of their roads." Railway Co. v. Sweet, 60 Ark. 550, 557, 31 S. W. 571; Railway Co. v. Sweet, 57 Ark. 287, 21 S.W. 587; Railway Co. v. Murray, 55 Ark. 248, 18 S. W. 50, 16 L. R. A. 787, 29 Am. St. Rep. 32; Ark. Midland Ry. Co. v. Cannon, 52 Ark. 517, 524, 13 S. W. 280. In the last case Judge Battle, speaking for the court, announced the following rule: "Railroad companies are bound to the most exact care and diligence, not only in the management of trains and cars, but also in the structure and care of the track and in all the subsidiary arrangements necessary to the safety of the passengers. While the law demands the utmost care for the safety of the passenger, it does not require railroad companies to exercise all the care, skill, and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible peril. They are not required, for the purpose of making their roads perfectly safe, to incur such expenses as would make their business wholly impracticable and drive prudent men from it. They are, however, independently of their pecuniary ability to do so, required to provide all things necessary to the security of the passenger, reasonably consistent with their business and appropriate to the means of conveyance employed by them, and to adopt the highest degree of practicable care, diligence, and skill that is consistent with the operating of their roads and that will not render their use impracticable or inefficient for the same."

The above is the correct rule. 2 Hutch. on Carriers, § 897. The instruction did not conform to the above rule, and is in conflict with many of our later decisions. True, the instruction contained language that was used in George v. St. L., I. M. & S. Ry. Co., 34 Ark. 613, 615, and Eureka Springs Ry. v. Timmons, 51 Ark. 459, 467, 11 S. W. 690, and in St. L., I. M. & S. Ry. Co.