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(118 Va. 521, 88 S. E. 174.)

caused the injury that is the sub

Automobileabsence of headlightliability for collision.

ject of this suit.
The taxicab had side
lights, which were
visible for
than a square, and

more

it was in fact seen by Carlton's chauffeur. There was abundant evidence that both chauffeurs were guilty of negligence. There is evidence that Carlton's chauffeur made a short turn, though he denies it; there is evidence that the taxicab was running at a high rate of speed, which also is denied; but the jury by their verdict have concluded both those controversies. It would have availed the plaintiff in error Carlton nothing to have added to the proof of the taxicab's negligence. It would in no degree have condoned or diminished his own negli

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DANTZLER SHIPBUILDING & DRY DOCK COMPANY, Appt.,

V.

MRS. J. W. HURLEY et al.

Mississippi Supreme Court (In Banc)- March 31, 1919.

(119 Miss. 473, 81 So. 163.)

Carrier automobile truck-stopping place.

1. One contracting to transport passengers by automobile truck does not breach his contract by failing to stop to let them alight directly opposite the gate leading to their residence.

[See note on this question beginning on page 1499.]

Proximate cause injury to passenger on automobile truck.

2. The proximate cause of the death of a passenger on an automobile truck, who, in attempting to alight from the truck as it was passing his gate, fell under the wheels and was killed, is his act in leaving the moving truck which was slowing down to stop, and not the failure of the driver to stop directly in front of his gate.

[See 22 R. C. L. 186.]

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3. The driver of a passenger-carrying automobile truck is not negligent in failing to stop his car to set down a passenger directly in front of his gate, as was his custom, if he would have brought the car to a stop within a few yards beyond the gate.

[See 4 R. C. L. 1241.] (Ethridge and Holden, JJ., dissent.)

APPEAL by defendant from a judgment of the Circuit Court for Jackson County (Neville, J.) in favor of plaintiffs in a suit brought to recover damages for the alleged negligent killing of the husband and father of plaintiffs. Reversed.

The facts are stated in the opinion Messrs. White & Ford, for appellant:

Deceased was not a passenger.

Bowles v. Indiana R. Co. 27 Ind. App. 672, 87 Am. St. Rep. 279, 62 N. E. 94; Ionnone v. New York, N. H. & H. R. Co. 21 R. I. 452, 46 L.R.A. 730, 79 Am. St. Rep. 812, 44 Atl. 592, 7 Am. Neg. Rep. 163; Louisville & N. R. Co. v. Stuber, 54 L.R.A. 696, 48 C. C. A. 149, 108 Fed. 934; McGuirk v. Shattuck, 160 Mass. 45, 39 Am. St. Rep. 454, 35 N. E. 110; Vick v. New York C. & H. R. R. Co. 95 N. Y. 267, 47 Am. St. Rep. 36; Toledo, W. & W. R. Co. v. Durkin, 76 Ill. 395; Abend v. Terre Haute & I. R. Co. 111 Ill. 202, 53 Am. St. Rep. 616, 11 Am. Neg. Cas. 421; Seaver v. Boston & M. R. Co. 14 Gray, 466.

Hurley was clearly the fellow servant of the driver, John Seymour, and defendant was not liable for his negligence.

McMaster v. Illinois C. R. Co. 65 Miss. 264, 7 Am. St. Rep. 653, 4 So. 59; New Orleans & G. N. R. Co. v. Hughes, 49 Miss. 258; Memphis & C. R. Co. v. Thomas, 51 Miss. 637; Louisville, N. O. & T. R. Co. v. Petty, 67 Miss. 255, 19 Am. St. Rep. 304, 7 So. 351; Lagrone v. Mobile & O. R. Co. 67 Miss. 592, 7 So. 432; Millsaps v. Louisville N. O. & T. R. Co. 69 Miss. 423, 13 So. 696; Illinois C. R. Co. v. Jones, Miss., 16 So. 300; Illinois C. R. Co. v. Bishop, 76 Miss. 758, 25 So. 867; Bradford Constr. Co. v. Heflin, 88 Miss. 314, 12 L.R.A. (N.S.) 1040, 42 So. 174, 8 Ann. Cas. 1077.

Defendant was not responsible for injuries to Hurley resulting from his own gross negligence in jumping off the truck while in motion.

Bardwell v. Mobile & O. R. Co. 63 Miss. 574, 56 Am. Rep. 842; Collins v. Southern R. Co. 89 Miss. 375, 42 So. 167; Natchez, C. & M. R. Co. v. Lambert, 99 Miss. 310, 37 L.R.A. (N.S.) 264, 54 So. 836; New Orleans, J. & G. N. R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478.

Messrs. Mize & Mize and S. C. Broom, for appellees:

If the defendant was guilty of any negligence that contributed to the injury of Hurley, then the defendant is liable.

Grand Trunk Western R. Co. v. Lind

of the court.

say, 120 C. C. A. 166, 201 Fed. 836, 233 U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep. 581, Ann. Cas. 1914C, 168; Smith v. Atlantic Coast Line R. Co. 127 C. C. A. 311, 210 Fed. 761; Louisville & N. R. Co. v. Wene, 121 C. C. A. 245, 202 Fed. 887; Spokane & I. E. R. Co. v. Campbell, 133 C. C. A. 370, 217 Fed. 518; Illinois C. R. Co. v. Skaggs, 240 U. S. 66, 60 L. ed. 528, 36 Sup. Ct. Rep. 249; O'Connor v. Chicago, M. & St. P. R. Co. 163 Wis. 653, 158 N. W. 344; Ragland v. Native Lumber Co. 117 Miss. 602, 78 So. 542.

Defendant's act in dragging the deceased after he was caught by the truck, and rolling the truck upon him, was negligence.

Stevens v. Yazoo & M. Valley R. Co. 81 Miss. 206, 32 So. 311; Bell v. Southern R. Co. 87 Miss. 234, 30 So. 821.

Cook, J., delivered the opinion of the court:

Mrs. J. W. Hurley and her children brought this suit against the appellant for the alleged negligent killing of the husband of Mrs. Hurley and the father of her children. The shipbuilding company was engaged in the business of shipbuilding, and its plant was located at Pascagoula. Numerous workmen were employed by this company. and Mr. Hurley, the deceased, was one of the number. Mr. Hurley and a number of the other employees made their homes in Moss Point, a near-by town. An arrangement was made whereby the company furnished an automobile truck and driver to and from their homes.

The plaintiffs alleged, and for the purposes of this opinion we will as sume, that the evidence tends to prove that they paid a small stipend to the company for this service, thus assuming that the company thereby became a carrier for hire. It was also alleged that the driver was reckless; but as the facts of this case do not show, or tend to show, that the injury and death of Mr. Hurley were caused by any reckless conduct of the driver, this averment of the dec

(119 Miss. 478, 81 So. 163.)

laration will not influence our conclusions.

Taking the record as a whole, there is very little conflict in the evidence about the deplorable accident which robbed the wife of a husband and the children of a father. On the date of the injury to Mr. Hurley, Mr. Hurley and a number of other employees were passengers upon the truck, having boarded the truck at the shipyard to be transported to their several homes in Moss Point. When the truck reached the boarding house of Mr. Hurley, and while it was running at a speed of not less than 3 miles per hour, Mr. Hurley jumped off the truck, and, losing his balance, he fell under the wheels of the machine, receiving injuries which caused his death.

We can find no evidence in the record that the driver was not going to stop at all. At the most, it may be inferred that the driver did not stop in front of the gate, and that he did not intend to stop exactly in front of the gate. It is also shown that the body of Mr. Hurley was dragged about 15 feet before the truck was stopped and backed off of him. It will never be known why Mr. Hurley jumped from the moving truck. It is, however, assumed by the attorneys for the plaintiff that he jumped because he saw or believed that the truck would not stop just opposite his gate.

We are unable to appreciate the argument that it would be a breach of

Carrierautomobile truck

the contract of carriage for the driver to have passed stopping place. the gate for a few feet or yards, as it was shown that anywhere near this gate there were no impediments or inconveniences in the way of his getting into his home. As we read the record, it conclusively appears that the driver had shifted his gear, and would probably have brought his car to a stop within a half dozen yards of the gate. Assuming, however, that the driver should have stopped his car immediately in front of the gate, 4 A.L.R.-94.

and that he did not do so, we must nevertheless reach the conclusion that the efficient and proximate cause of the injury

cause-injury

was the voluntary Proximate
act of Mr. Hurley to passenger
himself. There can truck.
be no reasonable

on automobile

doubt that, had Mr. Hurley remained on the truck for a few seconds more, he would to-day be living, barring other causes of death.

Again, we are unable to appreciate the validity of the argument that the truck was negligently operated. If we assume that it was the custom to stop the car precisely opposite the gate, and that in this instance the driver neglected to toe the mark, but Carrierwas going 15 or 20 failure to stop yards beyond the truck. gate, this could not

negligence

automobile

be classified as negligence. We think the following cases are all authority for the conclusions we have reached, viz.: Bardwell v. Mobile & O. R. Co. 63 Miss. 574, 56 Am. Rep. 842; Collins v. Southern R. Co. 89 Miss. 375, 42 So. 167; Natchez, C. & M. R. Co. v. Lambert, 99 Miss. 310, 37 L.R.A. (N.S.) 264, 54 So. 836; New Orleans J. & G. N. R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478.

The charge of negligence was not sustained. If it could be said that the driver was negligent, the plaintiff is still without remedy, because the alleged negligence was not the efficient or proximate cause of the injury. Taking this view of the case, the judgment of the trial court will be reversed, and the cause dismissed.

Ethridge, J., dissenting:

I dissent from the holding of the majority that the appellant was entitled to a peremptory instruction. The majority opinion holds that the Dantzler Shipbuilding & Dry Docks Company was a carrier of passengers in this case, at least for the purpose of the opinion, and I think this holding is sound and well supported both on the facts and on the authorities.

The decisions relied on in the ma

jority opinion are not applicable to this case for several reasons, the principal one being that contributory negligence as a defense to an action based on negligence for personal injuries is no longer a defense to the action, but merely goes to the mitigation of damages. Chapter 135, Laws of 1910 (which became effective April 16, 1910), is also set out in Hemingway's Code, §§ 502 and 503, which sections, as they appear in Hemingway's Code, read as follows:

"502. Contributory Negligence No Bar to Recovery of Damages-Jury may Diminish Damages.-1. In all actions hereafter brought for personal injuries or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured. Laws 1910, chap. 135. In effect April 16, 1910.

"503. Negligence-Question for Jury.-2. All questions of negligence and contributory negligence shall be for the jury to determine. Laws 1910, chap. 135. In effect April 16, 1910."

This statute was not in force at the time the cases arose, cited in the majority opinion. It will be necessary, before going into the authorities, to refer more at length to the facts contained in the record than is contained in the statement in the majority opinion.

J. W. Hurley, the husband of appellee Mrs. J. W. Hurley, and the father of the other plaintiffs, was being transported from the shipbuilding plant of the appellant to his boarding house in a motor truck owned and operated by the appellant. When the truck reached the proper place for it to stop for passengers to disembark, it was running at a rate estimated at from 2 to 4 miles per hour; some of the witnesses testifying it was running at the rate of 4 miles an hour, and had not stopped. There were five pas

sengers to stop at this place. When the truck got even with the walk leading to the boarding house, these passengers began to jump off; Hurley being one of them that disembarked. He fell, and was thrown under the truck, and was dragged about 15 feet, being under one of the wheels of the truck, and was so injured that he died in about five days thereafter. When Hurley fell, he holloed to the driver, and the driver then undertook to stop the truck, but could not bring it to a stop, according to some of the witnesses, until he had gone a distance of about 15 feet. During this distance between the fall and the stopping of the truck, Hurley made a desperate ef fort to hold himself in a position to keep the truck from crushing him.

According to the testimony of plaintiffs, a charge of 20 cents per week was charged Hurley and the other passengers for riding on the truck from the plant to the boarding house. According to some of the witnesses for the plaintiffs, the driv er of the truck was a reckless driver, and was running too fast with a load of passengers. According to the testimony of the plaintiffs and of the driver of the truck, it was the duty of the driver of the truck to stop in front of the boarding house, and take on and set down the passengers. The truck was not under such control at the time the deceased fell under it as to bring it to a prompt stop.

Hurley had an expectancy of more than twenty years, and the expectancy of his wife and children all exceeded that length of time. He was earning 65 cents per hour and worked about eleven hours per day, according to the testimony. The amount that Hurley would have earned during his expectancy at the rate of wages he was receiving would very largely exceed the amount of the verdict.

The nature of Hurley's employment and contract was that he was out of the control of appellant when he checked out each day at the plant. After being so checked out, he usual

(119 Miss. 473, 81 So. 163.)

ly caught the motor truck outside the building, and did so on the occasion of this injury.

The appellant pleaded contributory negligence, and introduced evidence tending to prove contributory negligence on the part of the deceased, and procured instructions on the duty of the jury, if it found that the deceased was guilty of contributory negligence, to reduce the damages in the proportion that the contributory negligence of the deceased bore to the negligence of the appellant. The verdict was for $5,000.

The opinion of the majority having established the relation of carrier and passenger between the appellant and the deceased, the duties of carrier would fall within the line of authorities in this state which have repeatedly held that it was the duty of the carrier to stop its vehicles a sufficient length of time for a passenger to alight in safety, and that a breach of this duty constituted a tort, and that the damages are measured according to the rules of law governing that class of actions. Heirn v. M'Caughan, 32 Miss. 17, 66 Am. Dec. 588; New Orleans, J. & G. R. Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Memphis & C. R. Co. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699, 4 Am. Neg. Cas. 268.

In the last case cited it was held that a passenger who has been injured by the negligence of the company's servants is entitled to full compensation for his injury. It was also held in this case that, where the gist of the action is negligence, the question of whether defendant had been negligent, so as to subject him to liability, and whether the plaintiff had been negligent, so as to exempt the defendant from liability, is one of fact for the jury, under the instructions of the court as to the applicable principles of law. This case, of course, was decided before the Contributory Negligence Statute was enacted, and even before its enactment, under this authority, the jury were authorized to determine the question in this case as it did in

favor of the plaintiff from the facts of the case.

In the case of Yazoo & M. Valley R. Co. v. Hardie, 106 Miss. 436, 64 So. 1, 4 N. C. C. A. 664, this court held that, where a passenger was, by the negligence of the railroad employees, carried beyond her point of destination, and on being returned to this point, some three hours later, had to go through a rainstorm to her home, and was made sick thereby, the railroad company was liable for the injuries sustained by her on her journey from the railroad to her home, and the verdict for $5,000 for such injuries was affirmed by this court.

In Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 So. 360, this court held the carrier liable on a similar state of facts.

In Humphries v. Illinois C. R. Co. 70 Miss. 453, 12 So. 155, this court held, where a railroad company failed to stop its passenger train, which as a rule did not stop at the station of plaintiff's residence in this state, if there was a custom for the train to stop here for the accommodation of passengers holding a ticket purchased from a connecting railway in other states, that it was the duty of the railroad to stop its fast train, and to permit plaintiff to get off, and that it was error to grant a peremptory instruction for the railroad in such case.

In the case of Southern R. Co. v. Kendrick, 40 Miss. 375, 90 Am. Dec. 332, it was held that the obligation of a common carrier as to passengers is to allow sufficient time and opportunity at the point of destination to leave the conveyance by which transported, and that it was the duty of the carrier to have the names of the different stations announced upon arrival, and to stop a sufficient length of time to allow passengers to get off without danger or injury to their person. It was also held that in actions of tort the jury are vested exclusively with the power to determine the amount of damages, and they in their discretion are to weigh all the circumstances

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