* Headnotes 1. Carriers, 10 C.J., Section 1266 (Anno); Measure of damages for carrying passenger beyond destination, see notes in 17 L.R.A. (N.S.) 1226; 41 L.R.A. (N.S.) 745; 4 R.C.L. 1087. 2. Carriers, 10 C.J., Section 1292. The appellee instituted suit against the New Orleans Northeastern Railroad Company for damages alleged to have been suffered by her on account of the failure of the railroad company to reasonably transport her to the station to which she had bought a ticket, and from a judgment in favor of appellee for five hundred dollars this appeal was prosecuted.
The facts as developed by the appellee's testimony are substantially as follows:
The appellee resided about a mile and one-half from Tawanta, a flag station about five miles south of Ellisville, Miss. On the night in question she boarded appellant's train at Ellisville, in company with her three young children and another woman with one child, holding a ticket to Tawanta, where the train was scheduled to arrive about nine o'clock at night. This train was not scheduled to stop at Tawanta except when there were passengers aboard to be discharged or when some one flagged the train. The appellee testified that when the conductor took up her ticket, she notified him that her husband would meet her at Tawanta with a conveyance; that the train did not stop at Tawanta, but when near Fox's Mill, between a mile and a mile and a half south of Tawanta, the conductor asked her if she was going to Fox's Mill; that she informed him that she desired to get off at Tawanta, and thereupon he stopped the train and backed up to the station at Tawanta, where she alighted on the station platform; that her husband was not at the station when she got off the train; that it was dark and raining, and there was no one at the station except a negro, and as a consequence she was compelled to walk to her home through the mud and rain, carrying two of her children, who were too small to walk under the conditions *Page 796 then existing, and that she was made sick by the exposure and exertion of this trip.
The husband of appellee and other members of her family testified that it was raining on the night in question, and that they went in a wagon to this flag station to meet the appellee, arriving there about ten minutes before the train was due; that when the train arrived it did not stop or slow up; that they watched it until it went out of sight around a curve about a quarter of a mile away, and, concluding that the appellee had failed to board the train at Ellsville, they then drove home; that the appellee arrived at home after ten o'clock; and that she was wet, muddy, and almost exhausted from the walk, and as a result was sick for some time thereafter.
The testimony for the appellant was in sharp conflict with that of the appellee as to the distance the train ran after passing the depot at Tawanta, as to the condition of the weather, as to whether the appellee was actually met by some one when the train backed up and discharged her at the station, and as to whether the conductor was advised by appellee that she would be met at the station by her husband, and there was testimony for the appellant which, if it had been accepted by the jury, would have exonerated it of the charge of negligence in failing to stop at the depot, but, since the jury resolved all the disputed facts in favor of the appellee, we deem it unnecessary to set out this testimony in detail.
The appellant contends that the peremptory instruction requested by it should have been granted, for the reason, among others, that the failure to stop the train was not due to negligence. Accepting the appellee's testimony, as the jury has done, that the train ran more than a mile beyond the station without slowing down, and then for the first time the conductor approached her and inquired whether she desired to get off at the next station, it is manifest that the failure to stop at her station was not due to the fortuitous circumstance that the signal to the engineer to stop failed to work at the first attempt, *Page 797 and as a result it became necessary to give the signal from another coach, as testified by the trainmen. There was ample testimony to support the finding of the jury that the failure to stop the train at the station was the result of negligence of the trainmen, and we think that the contention of the appellant that no breach of duty was shown, and that the damages claimed are not recoverable, is fully answered by the case of L.N.O. T.R.R.Co. v. Mask, 64 Miss. 739, 2 So. 360, a case which, in its essential facts, is practically identical with those of the case at bar. From the statement of facts in the Mask case, supra, it appears that, when the train approached the station, the whistle was sounded and the train began to slow up. Mask and one Haynes, who were then the only passengers on the train, took their baggage, and went upon the rear platform of the car. The conductor having looked into the car, and failing to see the two passengers, signaled the train to go ahead, and it did so. Mask, having failed to get off, approached the conductor, and informed him that he was being carried beyond his station, and asked that the train be stopped. The conductor immediately signaled the train to stop, which was done, the train being then several hundred yards beyond the depot. Mask got off the train, and went back to the depot, and, finding no conveyance there, had to walk home, a distance of three quarters of a mile. This was about twelve o'clock at night, the roadway was muddy, and Mask, who was an old and feeble man, was very much exhausted when he reached home. He went immediately to bed, and there remained for some days, and, still continuing enfeebled, he died some months thereafter. "It was further shown that a servant and horse were in waiting for Mask at the station, but that, the train having passed, and no one having gotten off, the servant returned home, supposing that Mask had not come." There was testimony of physicians that the sickness of Mask was probably induced by his exposure and being compelled to walk from the railroad station *Page 798 to his home. Upon these facts the only breach of duty considered by the court was the alleged failure to stop at the station. As to whether the train actually stopped at the station, the evidence was conflicting, and it was held that the questions of liability, and as to whether the injury complained of resulted from the failure of the company to stop its train and what actual damages were proven were properly submitted to the jury.
The only difference in the facts involved in the Mask case and the case at bar is that Mask was not carried back to the station on the train, but this does not distinguish the two cases in principle, as there was no injury suffered or damage claimed on account of the walk back to the station, but the recovery was based solely upon the injury and damage alleged to have been suffered on account of missing the conveyance and the consequent walk from the station to the plaintiff's home, the exact condition that existed in the case at bar.
There are several assignments of error based upon instructions granted the appellee, and upon the modification and refusal of instructions requested by the appellant, but we do not think any of them are of sufficient merit to call for discussion except the assignment based upon the refusal of the following instruction:
"The court instructs the jury for the defendant that, even though you may believe from a preponderance of the evidence that the train of defendant ran by the station in question, still, if you further believe from the evidence that the train passed by the station only a short distance, and that it never passed out of view and that it backed up and discharged plaintiff at the regular stopping place, then the defendant has performed its full duty, and it is your sworn duty to return a verdict for the defendant."
This instruction undertook to embody the theory of the defendant as developed by several witnesses. These witnesses testified that the train was lighted, and that it stopped not more than three hundred feet beyond the station, *Page 799 at a point in plain view of the station and any one at the station; that it was immediately backed up to the station platform, where the appellee was safely discharged; and that she was met by a white man, who took a child from her arms as she was alighting from the train. If this testimony was true, the appellee's husband, who testified that he was at the station and watched the lighted train as it proceeded beyond the depot, could not have been reasonably misled thereby, and there was no actionable breach of duty. The conflicts in the evidence were for the jury to pass upon, but we think the appellant was entitled to have the theory developed by its witnesses submitted to the jury, and consequently for the refusal of this instruction the cause must be reversed and remanded.
Reversed and remanded.