822
"FEDERAL REPORTER,
vol. 38.
pain he endured, the temporary, if not permanent, impairment of his eyesight and hearing, and his loss of time and attention to business, the amount of money paid for medical aid, expenses in prosecuting his. suit, including cOllnsel'sJees, the sum of $5,000 should be awarded him as hiB damages. The finding of facts will be in favor of the plaintiff for that sum, and the costs against the defendant, for which judgment will be entered.
REBER t7. BOND. {(Jirouit(Jofl,rt, S.
n. Mi8Bi88ippi, B. n.
May 20, 1889.)
It Is the duty of the conductor and employes operating a freIght traIn, as to which some accommodations have been provided for passengers, to give passengers thereon iuch attention and care as is consistent with the opera· Rnd care as are required of the tion of the train, but not such strict employes on regular passenger trains; and a person riding on such freight train. who is injured by the negligence of the employes, is not entitled to as heavy damages as if the accideqt had occurred on a passenger train.
Petition against Receiver on a Claim for Damages. Calhoun· & Green, for petitioner. Nu.gem & Me Willie, for respondent. HILL, J. This petition was exhibited by petitioner in his life-time against F. S. Bond, receiver,in the case of Farmers' Loan & Tru8t Co. v. Vick8burg & M. R. R. Co., and since his death revived in the name of his administrator, to recover damages for injuries received by him by the alleged gross carelessness nep;ligence of the employes of the said receiver. The answer of the rl:ceiver denies the carelessness and wrong. ful acts alleged. Proofhas been taken on both sides, and the questions of fact, as well 8s1aw, submitted to the court. The undisputed facts are as follows: Dr. Reber, this ,petitioner, on the23d day of August, 1888, purchased a ticket from the agent at Brandon to, Jackson, and got aboard the ii-eight train bound westward, and took his seat in what is called the "caboose car," which hasin it cushioned seats for the accommodation of such passengers as might desire to travel by that train. When the train arrived in Jackson it passed the freight depot, and beyond Capitol street, stopping for a very short period with the caboose car at Capitol street, where one of the passengers got off the train, the eight-remaining. The train was then backed down to the switch, towards the freight depot. When the caboose got opposite the depot, it stopped {or·a short time, when some one remarked that that was the place to p;et off.. Dr. Reber, and all the other passengers desiring to get (Iff the train, arose from their sellts, and started to get out, when by a sudden jerk or jar the caboose was thrown back, which threw the passengers forward,who were on their feet, and Dr. Reber was
REBER t:'. BOND.
823
thrown violently down on the floor, causing injuries to different portions of his person, from which he suffered great bodily pain and suffering, rendering him helpless, and from which he afterwards died. The proof is conflicting and unsatisfactory as to the length of time the train was stopped at the crossing of Capitol street, the place where passengers usually disembarked from the caboose. That it did stop there a short time, and that one of the passengers, Mr. Jayne, did disembark there. is conceded. There is no proof, however, that the passengers were notified that that was the place for those to'leave the train who desired to leave it at Jackson, which should have been done if they were required to leave at that point. Had that point been the regular passenger depot, such an announcement would not have been I1ecessary, as the passengers would then know that they were in Jackson. The proof is equally conflicting and unsatisfactory as to whether the caboose was detached from the train when it arrived at the freight depot, and, ifso,how long it remained hefore the defendant and others attempted to disembar)r, and the accident occurred resulting in the injuries to the petitioner. The testimony of the employes of the defendant is that the caboose was not detached. until after the had left the caboose, and that the jerk or jar ofthe train was the result of the slack running out of the -train, as itiscalled, as is usuaJ when the train is stopped at that peint. ·The testimony of some of the witnesses for petitioner is that the caboose was detached from the train before that time. I am of the opinion that the weight of the evidence is that it was not detached until after the accident,and that the jar or jerk was the result of the slack running out of the train. There is also some conflict in the evidence as to whether or not anyone conQected with the train notified the passengers that that was the place to leave the caboose; that some one did is evident, and the weight of the evidence is that it was the conductor; as it was his duty to have done, if the train had come toa proper stop, and there was no danger in getting out of the caboose; and it is fair to be presumed that he was of the opinion that the proper stop had been made, and that it was safe for them to disembark, but in which he was mistaken. The proof is that the freight depot was one of the points for disembarkment from the train. I am of the opinion that it was the duty of the conductor, who, from the tickets he had taken up, knew that petitioner, with other old persons on the train, were aboard the train bound for Jackson, to have either stopped the caboose at the crossing of Capitol street long enough for them to get off safely, and to have given them timely notice that that was the place to leave the train, or, if this was not done,to have notified them to remain in their seats until the caboose was detached from the train, and when they could get off of it safely; and that ,there was such a failure upon his part as to amount to a degree of negligence.' The quelltion. however, is, did it amount to that degree of ,negligence as, under the statute, renders the defendant liable for the damages claimed. If it was gross negligence,then there is no question of ·,the, liability. If it was not gross negligence, and the, train was one only ·designed for the transportation of freight, and, not for thetral1$portation
824
FEDERAL REPORTER,
o
of passengers as well, then there is no liability. I am,of the opinion that the proof does not show a case of gross negligence, so as to justify punitive damages, or damages at all, if the train had baen one not designed to transport passengers as well as freight. It is certain that it was not a passenger train, or what is sometimes called a "mixed train," f'luch as is used on short lines, and for the accommodation of local travel, and which have attached regular passenger coaches, and stop at the passenger depots; but the proof does show that more than ordinary accommodations were furnished to passengers than is ordinary or usual on strictly freight trains, and were such accommodations as to invite pas- . sengers to travel on that train who did not desire to wait for the passenger trains;' and that, such being the case, it was the duty of the conductor and employes operating the train to give to passengers traveling on the train such attention and care as was consistent with the operation of such a train, but not such strict attention and care as that required of the employes on regular passenger trains. The passengers on this train, by going on it, instead of waiting for the regular passenger train, took all the risks incident to such a train, and were required to keep a lookout, and do everything reasonably within their power to avert accident and danger. The dutiesoNhe conductor and other employes operating the' train are different from ,those on a passenger train. Freight trains are more difficult to manage and control than passenger trains, and consequently much more liable to accidents. The slacking and taking out the slack, the jars and jerks, are unavoidable in the one, and unknown almost in the other. Those who prefer traveling on freight trains take all these incidental risks; but, as before stated, I am of the opinion that by the extra accommodl\tions furnished passengers, inviting them to travel in this caboose, a stricter obligation for attention and care to the passengers was imposed on the conductor and employes than would have been had they not been furnished and this invitation given. so that this. exemption provided by the statute cannot avail the defendant. Yet I am further of the opinion that the damages should not be as much as for a similar degree of negligence had the accident occurred on a passengertrain, and that all the circumstances should be taken into consideration. That the petitioner suffered great pain, and was diSabled for life, and that the injuries hastened his death, are not denied. The question what, under all the circumstances, is a reasonable sum to be paid to his personal representative for the damages received, is one of some difficulty. If the injuries had occurred on a passenger train, where it is the special duty of the conductor and employes to receive passengers on the train, and to see them safely off the train, and when this special duty devolves upon the conductor, who has no other duty to perform, at that time, and who has at his command a competent brakeman to aid him, and when the train is easily handled, amuch larger sum would he reasonable; but in the management of a freight train the conductor has otherimportant duties to perform, and has very little time to devote to passengers, 8S is the case with all of his assistants. He has trains to make up, freight to receive and discharge; so that the risk which Dr. Re--
TILLERY V. BOND.
825
ber took in taking passage on this train, instead of waiting for the passenger train, must be taken into consideration. lam of the opinion that, considering all the circumstances, $2,750 is a reasonable sum to be allowed, and this sum to be in full for all damages resulting from the injuries received. The receiver will be ordered to pay that sum, and all the costs resulting from the injuries received, out of the money in his hands.
TILLERY 11. BOND.
(Circuit Court, 8. D. Mis8is8ippi, E.. D. May 28, 1889.) CARRIERS OF PASSENGERS-FAILURE TO ANNOUNCE STATtON-EVIDENCE.
In an action for damages for being carried past her station, plaintiff testl· fied that she did not know the station, that she was sick, and that she so informed the conductor. who promised to let her know when the station was reached; that he did not do so; and that she did not hear the station called. Her attorney testified that he was on the same train, and got off at the station in question, and that he did not hear the station called, but he admitted that be was familiar with its locality, and did not listen particularly to hear it called. The porter whose duty it was to call the station testified that he did so on the occasion in question, and that he was sure, because his attention was called to the matter the next day. The conductor denied that plaintiff bad any such conversation with him as stated. It appeared that plaintiff was a morphine eater, and subject to fits of unconsciousneaa. Held, that the evi· dence did not warrant a recoyerv.
Petition against Receiver on a Claim for Damages. Shelton & Crutcher, for petitioner. Birchett & GiUand, for respondent.
HU.L, J. This is an action brought by the plaintiff against the defendant, as receiver of the Vicksburg & Meridian Railroad Company; the questions of fact, as well as of law, being submitted to the court upon the pleadings and proof. The declaration, in substance, charges that plaintiff purchased a ticket from the agent at Vicksburg to Bovina, and entered the passenger train for the latter place; that on the way she informed the conductor of the train that she was sick, and that she did not know the stations on the road, being a stranger in the country, and requested him to have her notified when the train reached Bovina, which he promised to do, but which he failed to do, and that she did not know when they reached that station, and was carried to the next station, five miles distant; that when she left the train she reminded the conductor o()f his promise to notify her when they arrived at Bovina, which he acknowledged, and said he had forgotten it, and told her she could return by the evening train; that, when she informed him that she had no money 'with which to pay her fare, the conductor then told her that she would have to walk back, which she did; that she had to cross a long bridge on .a trestle, and she did so with great difficulty, having to crawl partQf the way on her hands and knees; that the w.eather was very hot, which