absence of

collision.

witnesses.

(118 Va. 521, 88 8. E. 174.) caused the injury that is the sub- verdict as contrary to the evidence

ject of this suit. there is testimony strongly tending Automobile

The taxicab had side to prove negligence on the part of headlight- lights, which were both the chauffeurs. The plaintiff liability for

visible for more in the court below, indeed, seems to

than a square, and have had an easy task. The Richit was in fact seen by Carlton's moud Transfer Company established chauffeur. There was abundant the guilt of Carlton's chauffeur, and evidence that both chauffeurs were Carlton, on the other hand, if his guilty of negligence. There is evi. witnesses are to be believed, overdence that Carlton's chauffeur made whelmed the Transfer Company a short turn, though he denies it; with proof of its

Trial-jurythere is evidence that the taxicab derelictions. The credibility of was running at a high rate of speed, credibility of the which also is denied; but the jury witnesses is for the jury, and not for by their verdict have concluded the court. both those controversies. It would Upon the whole case, we are of have availed the plaintiff in error opinion that there is no error, and Carlton nothing to have added to that the judgment should be afthe proof of the taxicab's negligence. firmed. It would in no degree have con- Affirmed. doned or diminished his own negli-comparative gence; so that we

NOTE. degligence- think the court was effect.

fully justified in re- The duty and liablity of carriers of fusing the instruction asked for. passengers for hire by automobile is We are of opinion, therefore, that the subject of the annotation beginno error was committed as to the ning on page 1499, post, subdivision instructions.

II. of that note being devoted to taxiUpon the motion to set aside the cabs.

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 passen- Carrier negligence failure to ger on automobile truck.

stop automobile truck. 2. The proximate cause of the death

3. The driver of a passenger-carryof a passenger on an automobile truck, who, in attempting to alight from the

ing automobile truck is not negligent truck as it was passing his gate, fell in failing to stop his car to set down a under the wheels and was killed, is his

passenger directly in front of his gate, act in leaving the moving truck which

as was his custom, if he would have was slowing down to stop, and not the

brought the car to a stop within a few failure of the driver to stop directly in front of his gate.

yards beyond the gate. [See 22 R. C. L. 186.]

[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 of the court.

Messrs. White & Ford, for appel- say, 120 C. C. A. 166, 201 Fed. 836, 233 lant:

U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep. Deceased was not a passenger.

581, Ann. Cas. 1914C, 168; Smith v. Bowles v. Indiana R. Co. 27 Ind. App. Atlantic Coast Line R. Co. 127 C. C. A. 672, 87 Am. St. Rep. 279, 62 N. E. 94; 311, 210 Fed. 761; Louisville & N. R. Ionnone v. New York, N. H. & H. R. Co. v. Wene, 121 C. C. A. 245, 202 Fed. Co. 21 R. I. 452, 46 L.R.A. 730, 79 Am. 887; Spokane & I. E. R. Co. v. CampSt. Rep. 812, 44 Atl. 592, 7 Am. Neg. bell, 133 C. C. A. 370, 217 Fed. 518 Rep. 163; Louisville & N. R. Co. v. Illinois C. R. Co. v. Skaggs, 240 U. S. Stuber, 54 L.R.A. 696, 48 C. C. A. 149, 66, 60 L. ed. 528, 36 Sup. Ct. Rep. 249; 108 Fed. 934; McGuirk v. Shattuck, 160 O'Connor v. Chicago, M. & St. P. R. Co. Mass. 45, 39 Am. St. Rep. 454, 35 N. 163 Wis. 653, 158 N. W. 344; Ragland E. 110; Vick v. New York C. & H. R. R. v. Native Lumber Co. 117 Miss. 602, Co. 95 N. Y. 267, 47 Am. St. Rep. 36; 78 So. 542. Toledo, W. & W. R. Co. v. Durkin, 76 Defendant's act in dragging the deIll. 395; Abend v. Terre Haute & I. R. ceased after he was caught by the truck, Co. 111 Ill. 202, 53 Am. St. Rep. 616, and rolling the truck upon him, was 11 Am. Neg. Cas. 421; Seaver v. Boston negligence. & M. R. Co. 14 Gray, 466.

Stevens v. Yazoo & M. Valley R. Co. Hurley was clearly the fellow servant 81 Miss. 206, 32 So. 311; Bell v. Southof the driver, John Seymour, and de- ern R. Co. 87 Miss. 234, 30 So. 821. fendant was not liable for his negli

Cook, J., delivered the opinion of gence.

the court: McMaster V. Illinois C. R. Co. 65 Miss. 264, 7 Am. St. Rep. 653, 4 So. 59;

Mrs. J. W. Hurley and her chil. New Orleans & G. N. R. Co. v. Hughes,

dren brought this suit against the 49 Miss. 258; Memphis & C. R. Co. v. appellant for the alleged negligent Thomas, 51 Miss. 637; Louisville, N. 0. killing of the husband of Mrs. Hur& T. R. Co. v. Petty, 67 Miss. 255, 19 ley and the father of her children. Am. St. Rep. 304, 7 So. 351; Lagrone The shipbuilding company was en

7 v. Mobile & O. R. Co. 67 Miss. 592, 7

gaged in the business of shipbuildSo. 432; Millsaps v. Louisville N. 0. &

ing, and its plant was located at T. R. Co. 69 Miss. 423, 13 So. 696; Illi

Pascagoula. nois C. R. Co. v. Jones,

Numerous workmen
Miss. —, 16
So. 300; Illinois C. R. Co. v. Bishop, 76

were employed by this company, Miss. 758, 25 So. 867; Bradford Constr.

and Mr. Hurley, the deceased, was Co. v. Heflin, 88 Miss. 314, 12 L.R.A. one of the number. Mr. Hurley and (N.S.) 1040, 42 So. 174, 8 Ann. Cas. a number of the other employees 1077.

made their homes in Moss Point, a Defendant was not responsible for in- near-by town. An arrangement was juries to Hurley resulting from his own made whereby the company furgross negligence in jumping off the

nished an automobile truck and truck while in motion.

driver to and from their homes. Bardwell v. Mobile & O. R. Co. 63 Miss. 574, 56 Am. Rep. 842; Collins v.

The plaintiffs alleged, and for the Southern R. Co. 89 Miss. 375, 42 So.

purposes of this opinion we will as167; Natchez, C. & M. R. Co. v. Lam- sume, that the evidence tends to bert, 99 Miss. 310, 37 L.R.A.(N.S.) 264, prove that they paid a small stipend 54 So. 836; New Orleans, J. & G. N. to the company for this service, thus R. Co. v. Statham, 42 Miss. 607, 97 Am. assuming that the company thereby Dec. 478.

became a carrier for hire. It was Messrs. Mize & Mize and S. C.

also alleged that the driver was reckBroom, for appellees: If the defendant was guilty of any

less; but as the facts of this case do negligence that contributed to the in

not show, or tend to show, that the jury of Hurley, then the defendant is

injury and death of Mr. Hurley were liable.

caused by any reckless conduct of Grand Trunk Western R. Co. v. Lind- the driver, this averment of the dec

on automobile

automobile

.

(119 Miss. 473, 81 So. 163.) laration will not influence our con- and that he did not do so, we must clusions.

nevertheless reach the conclusion Taking the record as a whole, that the efficient and proximate there is very little conflict in the cause of the injury evidence about the deplorable acci- was the voluntary

Proximate

cause-injury dent which robbed the wife of a act of Mr. Hurley to passenger husband and the children of a fath- himself.

There can truck. er. On the date of the injury to be no reasonable Mr. Hurley, Mr. Hurley and a num- doubt that had Mr. Hurley reber of other employees were pas- mained on the truck for a few sec

a sengers upon the truck, having onds more, he would to-day be livboarded the truck at the shipyard to ing, barring other causes of death. be transported to their several Again, we are unable to apprecihomes in Moss Point. When the ate the validity of the argument that truck reached the boarding house of the truck was negligently operated. Mr. Hurley, and while it was run- If we assume that it was the custom ning at a speed of not less than 3 to stop the car precisely opposite the miles per hour, Mr. Hurley jumped gate, and that in this instance the off the truck, and, losing his bal- driver neglected to ance, he fell under the wheels of the toe the mark, but Carrleen

negligencemachine, receiving injuries which was going 15 or 20 failure to stop caused his death.

yards beyond the truck. We can find no evidence in the gate, this could not record that the driver was not going be classified as negligence. We think to stop at all. At the most, it may the following cases are all authority be inferred that the driver did not for the conclusions we have reached, stop in front of the gate, and that viz.: Bardwell v. Mobile & O. R. he did not intend to stop exactly in Co. 63 Miss. 574, 56 Am. Rep. 842; front of the gate. It is also shown Collins v. Southern R. Co. 89 Miss. that the body of Mr. Hurley was 375, 42 So. 167; Natchez, C. & M. R. dragged about 15 feet before the Co. v. Lambert, 99 Miss. 310, 37 truck was stopped and backed off of L.R.A.(N.S.) 264, 54 So. 836; New him. It will never be known why Orleans J. & G. N. R. Co. v. Statham, Mr. Hurley jumped from the moy- 42 Miss. 607, 97 Am. Dec. 478. ing truck. It is, however, assumed The charge of negligence was not by the attorneys for the plaintiff sustained. If it could be said that that he jumped because he saw or the driver was negligent, the plainbelieved that the truck would not tiff is still without remedy, because stop just opposite his gate.

the alleged negligence was not the We are unable to appreciate the ar

efficient or proximate cause of the gument that it would be a breach of injury. Taking this view of the the contract of car

case, the judgment of the trial court Carrier automobile riage for the driv- will be reversed, and the cause distruckstopping place.

er to have passed missed.

the gate for a few Ethridge, J., dissenting: feet or yards, as it was shown that I dissent from the holding of the anywhere near this gate there were majority that the appellant was enno impediments or inconveniences titled to a peremptory instruction. in the way of his getting into his The majority opinion holds that the home. As we read the record, it Dantzler Shipbuilding & Dry Docks conclusively appears that the driver Company was a carrier of passenhad shifted his gear, and would gers in this case, at least for the probably have brought his car to a purpose of the opinion, and I think stop within a half dozen yards of this holding is sound and well supthe gate. Assuming, however, that ported both on the facts and on the the driver should have stopped his authorities. car immediately in front of the gate, The decisions relied on in the ma

jority opinion are not applicable to sengers to stop at this place. When this case for several reasons, the the truck got even with the walk principal one being that contribu- leading to the boarding house, these tory negligence as a defense to an passengers began to jump off; Huraction based on negligence for per- ley being one of them that disemsonal injuries is no longer a de- barked. He fell, and was thrown fense to the action, but merely goes under the truck, and was dragged to the mitigation of damages. Chap- about 15 feet, being under one of the ter 135, Laws of 1910 (which be- wheels of the truck, and was so incame effective April 16, 1910), is jured that he died in about five days also set out in Hemingway's Code, SS thereafter. When Hurley fell, he 502 and 503, which sections, as they holloed to the driver, and the driver appear in Hemingway's Code, read then undertook to stop the truck, but as follows:

could not bring it to a stop, accord“502. Contributory Negligence Noing to some of the witnesses, until Bar to Recovery of DamagesJury he had gone a distance of about 15 may Diminish Damages.—1. In all feet. During this distance between actions hereafter brought for per- the fall and the stopping of the sonal injuries or where such inju- truck, Hurley made a desperate efries have resulted in death, the fact fort to hold himself in a position to that the person injured may have keep the truck from crushing him. been guilty of contributory negli- According to the testimony of gence shall not bar a recovery, but plaintiffs, a charge of 20 cents per damages shall be diminished by the week was charged Hurley and the jury in proportion to the amount of other passengers for riding on the negligence attributable to the per- truck from the plant to the boarding son injured. Laws 1910, chap. 135. house.

house. According to some of the In effect April 16, 1910.

witnesses for the plaintiffs, the driv"503. Negligence-Question for er of the truck was a reckless driver, Jury.—2. All questions of negli- and was running too fast with a gence and contributory negligence load of passengers. According to shall be for the jury to determine. the testimony of the plaintiffs and Laws 1910, chap. 135. In effect of the driver of the truck, it was the April 16, 1910."

duty of the driver of the truck to This statute was not in force at stop in front of the boarding house, the time the cases arose, cited in the and take on and set down the pasmajority opinion. It will be neces- sengers. The truck was not under sary, before going into the authori. such control at the time the deceased ties, to refer more at length to the fell under it as to bring it to a facts contained in the record than prompt stop. is contained in the statement in the Hurley had an expectancy of more majority opinion.

than twenty years, and the expecJ. W. Hurley, the husband of ap- tancy of his wife and children all expellee Mrs. J. W. Hurley, and the ceeded that length of time. He father of the other plaintiffs, was be- was earning 65 cents per hour and ing transported from the shipbuild- worked about eleven hours per day, ing plant of the appellant to his according to the testimony. The boarding house in a motor truck amount that Hurley would have owned and operated by the appel- earned during his expectancy at the lant. When the truck reached the rate of wages he was receiving proper place for it to stop for pas- would very largely exceed the sengers to disembark, it was run- amount of the verdict. ning at a rate estimated at from 2 to The nature of Hurley's employ4 miles per hour; some of the wit- ment and contract was that he was nesses testifying it was running at out of the control of appellant when the rate of 4 miles an hour, and had he checked out each day at the plant. not stopped. There were five pas- After being so checked out, he usual

(119 Mi88. 673, 81 So. 163.) ly caught the motor truck outside favor of the plaintiff from the facts the building, and did so on the oc

of the case. casion of this injury.

In the case of Yazoo & M. Valley The appellant pleaded contribu- R. Co. v. Hardie, 106 Miss. 436, 64 tory negligence, and introduced evi- So. 1, 4 N. C. C. A. 664, this court dence tending to prove contributory held that, where a passenger was, negligence on the part of the de- by the negligence of the railroad emceased, and procured instructions on ployees, carried beyond her point of the duty of the jury, if it found that destination, and on being returned the deceased was guilty of contrib- to this point, some three hours lautory negligence, to reduce the dam- ter, had to go through a rainstorm to ages in the proportion that the con- her home, and was made sick theretributory negligence of the deceased by, the railroad company was liable bore to the negligence of the appel- for the injuries sustained by her on lant. The verdict was for $5,000. her journey from the railroad to her

The opinion of the majority hav- home, and the verdict for $5,000 for ing established the relation of car- such injuries was affirmed by this rier and passenger between the ap- court. pellant and the deceased, the duties In Louisville, N. 0. & T.R. Co. v. of carrier would fall within the line Mask, 64 Miss. 738, 2 So. 360, this of authorities in this state which court held the carrier liable on a have repeatedly held that it was the similar state of facts. duty of the carrier to stop its vehi- In Humphries v. Illinois C. R. Co. cles a sufficient length of time for a 70 Miss. 453, 12 So. 155, this court passenger to alight in safety, and held, where a railroad company that a breach of this duty constitut. failed to stop its passenger train, ed a tort, and that the damages are which as a rule did not stop at the measured according to the rules of station of plaintiff's residence in this law governing that class of actions. state, if there was a custom for the Heirn v. M'Caughan, 32 Miss. 17, train to stop here for the accommo66 Am. Dec. 588; New Orleans, J. & dation of passengers holding a tickG. R. Co. v. Hurst, 36 Miss. 660, 74 et purchased from a connecting railAm. Dec. 785; Memphis & C. R. Co. way in other states, that it was the v. Whitfield, 44 Miss. 466, 7 Am. duty of the railroad to stop its fast Rep. 699, 4 Am. Neg. Cas. 268.

train, and to permit plaintiff to get In the last case cited it was held off, and that it was error to grant a that a passenger who has been in- peremptory instruction for the rail

road in such case. jured by the negligence of the com

In the case of Southern R. Co. v. pany's servants is entitled to full

Kendrick, 40 Miss. 375, 90 Am. Dec. compensation for his injury. It was

332, it was held that the obligation also held in this case that, where

of a common carrier as to passenthe gist of the action is negligence,

gers is to allow sufficient time and the question of whether defendant opportunity at the point of destinahad been negligent, so as to subject tion to leave the conveyance by him to liability, and whether the which transported, and that it was plaintiff had been negligent, so as to the duty of the carrier to have the exempt the defendant from liability, names of the different stations anis one of fact for the jury, under the nounced upon arrival, and to stop a instructions of the court as to the sufficient length of time to allow pasapplicable principles of law. This sengers to get off without danger or case, of course, was decided before

injury to their person. It was also the Contributory Negligence Stat- held that in actions of tort the jury ute was enacted, and even before its are vested exclusively with the powenactment, under this authority, the er to determine the amount of damjury were authorized to determine ages, and they in their discretion the question in this case as it did in are to weigh all the circumstances