(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 majority 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 *487of 1910 (which, became effective April 16, 1910), is also set out in Hemingway’s Code, sections 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, hut damages shall he diminished by the jury in proportion to the amount of negligence attributable to the person injured. (Laws 1910, chapter 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, chapter 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 Ms 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 two to four miles per hour; some of the witnesses testifying it was running at the rate of four miles an hour and had not stopped. There were five passengers 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 fifteen feet, being under one of the wheels of the truck, and was so injured *488that he died in about five days thereafter. When Hurley fell, he hollered 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 fifteen feet. During this distance between the fall and the stopping of the truck, Hurley made a desperate effort to hold himself in a position to keep the truck from crushing him.
According to the testimony of plaintiffs, a charge of twenty cents per week was charged Hurley and the other passengers for riding on the trnck from the plant to the boarding house. Accordingly to some of the witnesses for the plaintiffs, the driver 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 sixty-five 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 control of appellant when he checked out each day at the plant. After being so checked out, he usually 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 in*489structions on the duty of the jury, if it found that deceased was guilty of contributory negligence, to reduce the damage in the proportion that the contributory negligence of the deceased bore to the negligence of the appellant. The verdict was for five thousand dollars.
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. McCaughan, 32 Miss. 17, 66 Am. Dec. 588; N. O., J. & G. R. R. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; M. & C. R. R. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699.
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 thé facts of the case.
In the case of Y. & M. V. R. R. v. Hardie, 106 Miss. 436, 64 So. 1, this court held that, where a passenger was by the negligence of the railroad employees carried yond her point of destination, and on being returned *490to 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 five thousand for such injuries was affirmed by this court.
In L., N. O. & T. R. R. v. Mask, 64 Miss. 738, 2 So. 360, this court held the carrier liable on a similar state of facts.
In Humphries v. I. C. R. R., 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 Railway 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 of 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 of the ease and to determine accordingly.
In the case of M. & O. R. R. v. McArthur, 43 Miss. 180, the passenger on a freight train, which was not regularly, hut only occasionally, used to carry passengers, paid his passage money. The train carried him *491five miles beyond his destination, and pnt him off at another station, and he had to walk 'back to his destination. He had chronic rheumatism and was exposed to the weather. Held, on demurrer to the evidence, that the passenger was entitled to recover.
In the ease of Thompson v. N. O., J. & G. R. R., 50 Miss. 315, 19 Am. Rep. 12, plaintiff went aboard the cars, paid fare to Bogne Chitto, and the train did not stop, bnt ran past for two miles to a water tank. Thompson demanded the train should return. The conductor was courteous and polite, and submitted the option to Thompson to leave the train at the tank or to ride to the next station and return to Bogue Chitto free of charge. Thompson accepted the latter alternative and returned to the station, but the train went beyond the station, and landed him one hundred and fifty yards beyond, and he voluntarily jumped off without injury. On the trial counsel for the defendant demurred to the testimony, and the trial court sustained the demurrer, and this court held that it was error; that the right of action was complete, even though no personal injury was sustained. At page 318 of 50 Miss. (19 Am. Rep. 12), in the opinion, the court said:
“It is insisted, in behalf of the plaintiff in error, that upon the facts the right of action is absolute and eim-plete; and counsel press the distinction between this right and the amount of damages which may be assessed by the jury. On the other had, it is urged that this is, on its face, a speculative prosecution, and ought not to be sustained by the courts.”
The court cited Heir v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588, supra, and then said: “Thompson, in the case at bar, makes no complaint of mental or bodily suffering, nor of danger from exposure to the weather or otherwise.”
The court then discussed previous cases and concluded the opinion at page 320 of 50 Miss. (19 Am. Rep. 12) in the following language:
*492“Upon the evidence, the plaintiff acquired a technical right of recovery, hut the -rule as to punitive damages does not apply. Hence, although the damages are only nominal, nevertheless the cause of action ought to have been sustained, and a writ of inquiry awarded, to be executed under the appropriate directions of the court in such a case, as to which, vide 2 Bed. L. of Railway, 220 et seq.; S. & R. 646 et seq.; Sedgwick, 90, 128, note, 413, note, 665, note.”
I submit that this authority is a parallel authority with the case here, with the single difference that Thompson was not injured, while in the present case the man was injured to such' an extent that he suffered intensely for five days and then died.
In White v. Railroad, 97 Miss. 91, 52 So. 449, 55 So. 593, this court, speaking through Judge Anderson, at page 99 of the Mississippi Report of this case (55 So. 594), defined the duty which the carrier owned to the passenger at common law as follows:
“According to the common law the carrier owes the passenger the utmost degree of care for Ms safety, regardless of the character of the car or train on which he is being carried. There is no distinction in this respect between freight trains and regular passenger trains, provided such freight trains are used for the carriage of passengers. At common law there is only one class of trains in the operation of which the carrier is relieved from the exercise of the utmost degree of care for the safety of persons traveling on such trains, and that is those trains which are not intended for and which do not carry passengers.”
In Dorrah v. I. C. R. R., 65 Miss. 14, 3 So. 36, 7 Am. St. Rep. 629, this court held that a railroad company is liable to a passenger for actual damages for failing to announce or give notice in some way of the station, and to stop its trains long enough for him to get off with safety.
*493In Georgia Pacific Ry. Co. v. West, 66 Miss. 310, 6 So. 207, this court held that ordinarily the employees in charge of the train do not owe the duty to a passenger on hoard to stay longer than for them to sufficiently and safely and conveniently get off; hut even after the usual stop it is negligent for them to start the train if they know, or have reason to believe, that a passenger in the act of alighting, or that the passenger intending to alight, from age or infirmity requires a longer time than usual to alight. It was also held in this case that the court properly refused to instruct that it was contributory negligence per se for a passenger to. alight from a train on the platform of the station if the train is in motion, where the only evidence of the train’s failure to stop is that it was barely moving, and this is coupled with the statement that the passenger was being assisted to alight by an employee in charge of the train. The instruction refused in that case read as follows:
“ (6) The court instructs the jury that, if they believe from the evidence that plaintiff attempted to get off the train of defendant onto the platform at Burdette while the train was in motion, then the plaintiff’s own negligence contributed to occasion her falling, and they will find for the defendant.”
In C., St. L. & N. O. R. R. v. Scurr, 59 Miss. 456, 42 Am. Rep. 373, this court laid down the rule of the degree of responsibility as follows:
“Common carriers are subjected by law to a degree of responsibility unknown to other callings, but the measure of damages for nonperformance of their duties is the same as in other persuits, to wit, compensation for carelessness or thoughtlessness, and exemplary punishment for recklessness, willfulness, or insult. ’ ’
This has been cited with approval in a large number of cases in this court. See authorities cited in *494the second 'syllabus of tbe reprint Mississippi Reports. In King v. Y. & M. V. R. R., 87 Miss. 270, 39 So. 810, tbis court held that a passenger by alighting* from a slowly moving railroad train is not, under all circumstances, guilty of such contributory negligence per se as will preclude him from recovering from the railroad company for injuries.
The degree of care required and liability as to passengers boarding or alighting from vehicles is stated in 10 Corpus Juris, p. 924 section 1348, as follows:
“The carrier is bound to exercise care in securing the safety of the passenger while boarding and alighting from its cars or other conveyances, and the degree of care required in the discharge of this duty is the highest care, or the care which a very prudent person would use under the circumstances; that is, that high degree of care which is required with reference to the transportation of passengers. And where a carrier misleads a passenger with reference to the time, the place, and the safety of boarding or alighting, it is liable for the injuries sustained; but the* carrier is not an insurer of the passenger’s safety in this regard, and if the carrier, through its agents and employees, uses proper care for the safety and protection of a boarding or an alighting passenger, it is not liable for injuries that he may sustain while getting or leaving the car, particularly where he does so by an unusual mode of ingress or egress, nor is it liable for injuries received by him after it has performed its duty, and he has safely left the car.”
In 10 Corpus Juris, at page 843, section 1283, the rule is laid down that, in case of the breach by the carrier of its duty or contract to transport a passenger, the latter ordinarily has a choice of remedies, and may sue either in tort or for breach of the contract.
In 10 Corpus Juris, p. 854, the rule as to the exercise of care is stated as follows:
*495“See. 1295. 2. Statements of Care Required. — a. In G-eneral. — Although the classification of negligence by degrees has been condemned by high authority, various forms of expression have been used to indicate the degree of care, skill, and diligence which a carrier of passengers must exercise in transporting a passenger, such as that it must exercise ‘the highest degree of care, prudence and foresight,’ ‘the greatest possible care and diligence,’ ‘the utmost care and diligence,’ or ‘extraordinary care and caution.’ In the proper use of the term, however, ‘negligence’ is simply the failure to use the amount of care, skill, and diligence required by the nature of the undertaking and the circumstances of the case, and speaking in this sense of the degree of care required of the carrier of passengers who has intrusted to it the personal safety of the passenger, it is evident that, whatever form of expression is used, the skill, care, and diligence should be apportioned to the nature and risk of the undertaking, in view of the nature of the means of conveyance employed, and sometimes involves custom and knowledge, actual or attributable to one or the other of the parties, although it has been held that the degree of care required under particular circumstances and conditions cannot be lessened by the carrier’s custom in regard to particular acts. Ordinary care imports all the care which the peculiar circumstances of the place or occasion reasonably require, and this will be increased or diminished as danger of accident or injury is increased or diminished. Therefore, while it might be proper in one sense to say that the care required is that which an ordinary careful and prudent person would exercise in such business, yet, on the other hand, the nature of the business requires the use of a very high degree of care, prudence, and foresight, and it would be misleading to say that ordinary and reasonable care was sufficient to relieve the carrier from the charge of negligence, although *496it has been held that, in view of the modern tendency to refuse to recognize degrees of negligence, the care required of the carrier may he expressed by the terms ‘due care,’ ‘reasonable care/ or ‘ordinary care/ particularly in regard to dangers which are not usually incident to the mode of conveyance used. A railroad company owes to a passenger a different and a higher degree of care than to mere trespassers or strangers, or to travelers at highway crossings, or to one of its servants.”
In 6 Cyc. 585, it- is stated where a ticket is sold on a particular train for a specified destination or a passenger on a train paid the conductor for transportation to a specified destination, the carrier is under obligation to stop the train at that point to allow the passenger to alight, and a refusal to carry him on that train to such destination will be a beach of the contract.
At page 586, 6 Cyc., heading, “Duty to Stop Train at Platform,” it is said:
“The carrier should stop the train at the usual platform for discharging passengers at the place of destination, and cannot require the passenger to alight at an unusual or unsuitable place. It is also obligatory that the train be stopped for a reasonable length of time to allow passengers, in the exercise of due diligence, to get off without danger.”
In 6 Cyc. '594, heading, “Liability as Affected by Means of Transportation,” it is said:
“So large a proportion of the transportation of passengers is by means of railroads operated by steam that the general rules of liability as developed in the decided cases have reference to such carriage, and no particular discussion of the cases further than that given in the preceding paragraphs is necessary. Undoubtedly the same rules govern the liability of carriers operating steam vessels. In the operation of freight trains, however, somewhat greater peril is involved to passengers riding thereon than is involved in the *497operation of passenger trains. Nevertheless, the rule of liability — that is, the requirement as to the exercise of a high degree of care and foresight — is the same. The passenger, by assuming to ride by this means of conveyance, does not relieve the carrier from the obligation to exercise great care for his safety.”
In 6 Cyc. p. 595, heading “Stagecoaches,” it is said:
“The principles governing the liability of passenger carriers seem first to have been laid down in stagecoach cases, and it was early settled that the owner of a stagecoach is not an insurer of the safety of his passengers, and is liable only in case of negligence. But the carrier by stagecoach is hound to exercise the greatest care and diligence, and is liable for the slightest negligence of himself or his servants.”
In Railway Co. v. Hanes, 69 Miss. 160, 13 So. 246, this court laid the rule down that, where the declaration contains no specification of the nature and kind of damage claimed, only such as actually and proximately arise out of the act complained of can be recovered, does not apply in actions for tort.
In Railroad v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98, it is held that a railroad company impliedly warrants that its engineers and other employees are possessed of due skill, are competent and faithful, and the railroad company is liable under all circumstances for injuries caused by their negligence.
In Toler v. Railroad, 31 So. 788, a case where the plaintiff’s testimony showed that she went immediately to the steps of the car when the station was announced, and it being dropped, and she thinking the train had stopped, got off and was injured, the train being in motion, the testimony that thereafter the train was again stopped by the ringing of the hell to let off other passengers, presented a ease for the jury as to the negligence of stopping too short a time.
In the case of Fore v. Railway Co., 87 Miss 211, 39 So. 493, 690, this court held that a circuit judge may grant *498a new trial if the verdict be against the weight of the evidence, but is warranted in granting either party a peremptory instruction only when the evidence is favorable to either party, conceding it to be true, discloses no legal right in him, or fails to maintain the issue in his favor.
Under the facts in the present case there was ample evidence to warrant the jury in finding that the driver was careless, and, indeed, it seems to me that this very carelessness of the driver resulted in the injury to the deceased. The driver not only failed to stop, but he did not have his ear under the control that it should have been under the circumstances.;' If theftruck was only going three or four miles per hour, and if he had had his appliances properly adjusted to control the car, it could have been stopped in much less distance than fifteen feet.
The majority of the court say that the negligence of the deceased in getting off a moving car was the proximate cause of his death. In my opinion the proximate cause of his death was being dragged and crushed by the truck, which the appellant negligently failed to stop. If the car. had been stopped, in the discharge of the duty of the appellant to stop it, the injury would not have occurred at all. It was not the fall that killed the deceased. It was the moving truck, being moved by the negligence of the appellant. At most, the deceased was guilty only of contributory negligence. His fall contributed to the injury, but was not the' immediate cause of his injury. The sections of Hemingway's Code above referred to should control this case.
The cases referred to in the majority opinion are not analogous to the present case, and all of them recognize a right of nominal damages for the failure to stop the train. I cannot see how the injury in the present case can be disconnected from the neligence of the company in failing to stop the truck at the proper *499place, and also for the failure to have the machinery of the truck adjusted so as to bring it to an immediate stop in case of necessity.
In the case of Bardwell v. Railroad, 63 Miss. 574, 56 Am. Rep. 842, the carrier was under no duty to stop its car at the place where the plaintiff jumped off, and the conductor had no right to bind the company in advising him to jump; the company being only bound to stop it at the station to which plaintiff had Bought a ticket.
In the case of Collins v. Railroad, 89 Miss. 375, 42 So. 167, there was an attempt by a person to board a moving train. Of course, the railroad company was not responsible for his boarding a moving train, or undertaking to disembark before the train stopped.
In the case of Railroad v. Statham, 42 Miss. 607, 97 Am. Dec. 478, the court expressly recognized the duty of the railroad company to stop the train sufficiently long for passengers to get off. At page 614 of 42 Miss. (97 Am. Dec. 478) the court said:
‘ ‘ They should have the stations announced; they should stop the train sufficiently long for the passengers for each station to get off. When this is done, their duty to the passengers is performed.”
The case was reversed because of the instructions of the court. The court said in that opinion at page 629 of 42 Miss. (97 Am. Dec. 478):
“We would not disturb a verdict for damages, where it was not apparent to us that the jury had either misapplied the law, or misunderstood the facts, or had been influenced by their prejudice's or passions, rather than by an observance of the law and the facts of the case.”
The contention in that case was, or rather the suit was founded upon, the proposition that the plaintiff was sick and needed assistance to get from the platform, and that the conductor knew he was unable to get off without assistance. There was a verdict for *500three thousand, two hundred and seventy-five dollars in that case. Speaking of the phase of the evidence bearing on the plaintiff’s sickness and the carrier’s duty to sick persons, the court said:
“Railroad cars are not traveling hospitals, nor their employees nurses. Sick persons have the right to enter cars of a railroad company; as common carriers of passengers, they cannot prevent their entering their cars. If they are incapable of taking care of themselves, they should have attendants along to care for them, or to render them such assistance as they may require in the cars, and to assist them from the cars at the point of their destination.”
This presents an entirely different case from the present controversy, and the action was not maintained because of the want of duty on the part of the carrier to look after a sick person.
HoldeN, J., concurs in this dissenting opinion.