Louisville & N. R. v. Compiretto , 137 Miss. 766 ( 1925 )

Cook, J.,

delivered the opinion of the court.

The appellee, Mrs. Jennie Compiretto, instituted this suit against the Louisville & Nashville Bailroad Company seeking to recover damages for a failure to safely transport her from the city of Gulfport, Miss., to New Orleans, La., and to furnish her a safe place or means of alighting from the defendant’s train, and from a judg*ment in favor of the plaintiff for the sum of two thousand five hundred dollars, this appeal was prosecuted.

.The declaration alleged that the defendant company entered into a contract with the plaintiff by which, in consideration--of the'price paid for a ticket, it agreed to safely carry and transport the plaintiff from Gulfport, Miss., to New Orleans, La., and to furnish her a safe means of alighting, from its train at her destination, and that, in alighting from the train at the depot in the city of New Orleans, the heel of her shoe caught in a hole or other defect in the steps leading from the car to the depot platform, thereby causing her to trip and fall to the platform, from which fall she sustained serious injury.

As to the cause of her fall, the plaintiff testified that as she was descending the steps which led from the coach in which she had been riding to the depot platform, the heel of her shoe caught in a hole or crack in the second step, and thereby the heel of her shoe was pulled off and she was precipitated to the concrete platform below. The plaintiff was wearing a shoe with a high heel, and the flagman, of the train, who was standing’ by the steps when she fell, testified that the heel of plaintiff’s shoe caught on the edge of the step, and that there was no hole or other defect in the step. At the conclusion of-the testimony the court granted the plaintiff -only one instruction upon the question of liability, which reads as follows:

“The court instructs the. jury for the plaintiff that when the railroad company sold a ticket for transportation to the plaintiff herein, to the city of New Orleans, it contracted thereby not only to safely transport her to her destination, but to furnish her safe means of alighting from their train, and if you believe from a. preponderance of the evidence that, because of a defective step, or because of a crack or hole therein, that she slipped, tripped, or fell off said step, injuring, herself, you shall find a verdict for the plaintiff.”

The rule that a carrier of passengers is not an insurer of the safety of its passengers is so universally recognized that it does not require the citation of authorities to support it. That a carrier of passengers is required to exercise the highest degree of care and diligence for the safety of its passengers is established by the decision of this court as well as the authorities generally, but,it is only liable for injuries to passeng’ers which are caused by its negligence in failing to exercise this high degree of care. By this instruction negligence was not made the basis of liability, but the jury was informed that the defendant owed an absolute duty to safely carry the plaintiff to her destination, and to furnish her a safe means of alighting from the train. It is not true, as stated in this instruction, that, by the sale of the ticket, the defendant contracted to safely transport her to her destination and to furnish her safe means of alighting from the train, but it only contracted to exercise the high-est degree of care and diligence in this regard. This instruction, in effect, makes the carrier an insurer of the safety of the passenger, and, we think, it was calculated to mislead the jury. The defendant secured no instruction which, in any way cured the error, and, consequently, for the error in this instruction the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.