Opinion
No. 27721.
March 18, 1929.
1. RAILROADS. Boy riding on blind between mail and baggage cars was trespasser, whether invited by engineer or not.
Boy riding on blind between mail and baggage cars of train which was derailed and wrecked was trespasser, whether he was riding on blind at invitation or suggestion of engineer or not.
2. RAILROADS. Railroad owed trespasser riding on blind between mail and baggage cars no duty except not to injure him willfully or show reckless disregard of his safety.
Railroad company owed trespasser riding on blind between mail and baggage cars no duty, except not to injure him willfully or wantonly and not to show reckless disregard of his safety which might proximately cause injuries.
APPEAL from circuit court of Warren county, HON. E.L. BRIEN, Judge.
Vollor Kelly, and Chaney Culkin, for appellant.
The general rule is that where an engineer or conductor, or other employee of a railroad company, invites or permits one to ride on a train in violation of the rules of the company, that the company will only be liable to such person, so riding in violation of its rules, for injuries suffered by reason of its gross negligence or wilful misconduct.
The application of this rule, however, would not render the decedent a wilful trespasser. If he undertook to ride between the cars, on the outside of the train, from Vicksburg to Port Gibson, on the invitation of the engineer in charge of the train, and there is no substantial conflict on this point, he had a right to assume that the engineer was not exceeding his authority in extending the invitation. If he undertook to ride the train under the belief that he had a right to do so on the invitation of the engineer, he could not be a wilful trespasser, even though the engineer was without authority to extend the invitation. This seems to be the general rule. 33 Cyc. 763; Ala. V. Ry. Co. v. Livingston, 84 Miss. 1, 36 So. 256. We presume that, under the general rule, the court will hold that the decedent was a trespasser or a mere licensee since the engineer apparently had no authority to invite him to ride the train, but that he was not a wilful trespasser. That, in other words, he occupied a more favorable position than he would have occupied if he had undertaken to steal the ride or to ride without the knowledge or permission of someone in charge of the train. We concede that the decedent was a trespasser or licensee, but contend that he had a right to assume that the engineer did not exceed his authority when he invited him to ride on the outside of the train and that he was not, therefore, a wilful trespasser, and that it was the duty of the defendant, at least to exercise such care and caution for his protection and safety as an ordinarily prudent person would have done similarly circumstanced. Hirsch, Dent Landau and Chas. N. Burch and H.D. Minor, both of Memphis, Tenn., for appellee.
It was appropriately pleaded and proven to the satisfaction of the jury that the decedent was a trespasser upon the blind of said train. That he was violating both the state and federal law in this regard. It was shown that no authority was or could be given to him by the engineer to ride on the train, and that he was there on his own volition for an unlawful purpose. In I.C.R.R. Co. v. Messina, 240 U.S. 395, the supreme court of the United States decided that an engineer had no lawful right to give a stranger permission to ride on an engine on an interstate train. This question has, however, been eliminated from this case by the finding of fact by the jury that the decedent was not on this train by permission or with the knowledge, consent or approval of the engineer. The decedent was likewise violating the law of this state at the time he lost his life, and if by permission of the engineer, he was on the train, he is in no better attitude. If there is any thoroughly established rule of law in this state, it is that one which denies a person damages proximately and solely resulting from his violation of the criminal law. Grapes Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.
Appellant says: "We shall concede that the decedent was a trespasser, or a licensee, but that he had a right to assume that the engineer did not exceed his authority when he invited him to ride on the outside of the train." May we inquire by what process of reasoning or indeed any preadventure, it can be conceived that the decedent had cause to think, if he so thought that he was entitled to passage to Port Gibson on the blind, strapped to the blind, on this train? He knew as all know that the blinds were not made for passengers. How by the wildest stretch of the imagination could this young man think that the engineer, or anyone else, could give him permission to ride the blind — to commit crime? The fact is, as the jury found no such invitation or authority was extended to him. He was a wilful and clandestine trespasser. The appellee owed him no duty except not to wilfully or wantonly injure him and the evidence discloses beyond all reasonable doubt that no such injury was inflicted. I.C.R.R. Co. v. Arnold, 78 Miss. 787; Fuller v. I.C.R.R. Co., 100 Miss. 708, 56 So. 783; A.G.S.R.R. Co. v. Simrall, 100 Miss. 358, 66 So. 727; I.C.R.R. Co. v. Ash, 128 Miss. 410, 91 So. 31.
When, about forty-five minutes past midnight on the morning of October 4, 1926, the fast southbound passenger train of appellee was leaving the South yards in the city of Vicksburg, appellant's son, Robert Burks, a lad of seventeen years, caught the "second blind" between the mail and baggage cars, intending in that way to ride to the town of Port Gibson, where he had been in attendance at a male academy. Twenty-five minutes later the train passed a small depot, called Allen Station, at which this train was not scheduled to stop. When the locomotive had reached a point about six hundred feet south of the station house, three animals, two horses and a mule, dashed suddenly out of the dark upon the railroad track, and one of them was hurled forward by the locomotive with such force that the carcass struck and broke the switch stand on the right in such manner that the switch points were turned and the train was derailed and wrecked. The engineer and fireman were killed, and the dead body of young Burks was found hanging by a leather belt to the end of one of the cars which formed the said "second blind."
Suit was filed in the circuit court of Warren county by the appellant father against appellee to recover damages for the death of his said son, the complaint being, upon the trial, that the cross-ties, and particularly the long ties upon which the said switch stand was placed, were rotten and unfit for use; that the boy was riding in the place where he was killed on the suggestion or invitation of the engineer; that it was known to the appellee company and to the said engineer that stock was liable to be on the tracks at Allen Station, by reason of past experience in that regard at that particular place; and that in spite of all this the engineer drove the locomotive by and beyond said station in a grossly negligent manner at the rate of approximately fifty miles an hour. Each of these issues was met by appellee by testimony in contravention thereof, and the verdict of the jury was for the appellee railroad.
Although there was ample testimony to disprove the claim that the boy was on the blind at the invitation or suggestion of the engineer, it seems to us that this makes but little difference — the boy was a trespasser nevertheless. And the rule as to trespassers on trains is as stated in Railroad Co. v. Burnsed, 70 Miss. 442, 12 So. 958, that the railroad company owes them no duty except not to injure them willfully or wantonly, to which it is to be added that the railroad company shall not be guilty of such gross negligence as would evince a reckless disregard of the safety of any person or persons who might as a proximate result thereof be injured, and this of course would include trespassers. The instructions by the court fairly apprised the jury of these rules, and taking all the instructions together and reading them as a whole, there is nothing in them, that we can see, of which appellant may justly complain. On the contrary, there were, of the many instructions granted, at least three which when read separately were liberal to the appellant to the extent that by them the jury was informed in effect that negligence, simple negligence, was sufficient to uphold a verdict for appellant. In view of the entire record, scrutinizing it in detail and as a completed whole, we find nothing substantial upon which a reversal could be based.
Affirmed.