New Orleans & N. E. R. Co. v. Penton

• Decision Date: 31 March 1924
• Docket Number: 23831
• Citation: 135 Miss. 571,100 So. 521
• Parties: NEW ORLEANS & N.E. R. CO. v. PENTON. [*]
• Court: Mississippi Supreme Court

100 So. 521

135 Miss. 571

NEW ORLEANS & N.E. R. CO. v. PENTON. ^[*]

No. 23831

Supreme Court of Mississippi

March 31, 1924

(En Banc.)

1 COMMERCE. Action governed by federal Employers' Liability Act where employee and railroad were engaged in interstate commerce.

Where brakeman and railroad by which he was employed were both engaged in interstate commerce at the time of the accident the brakeman's action for injuries was governed by the federal Employers' Liability Act (U. S. Comp. St sections 8657--8665).

2. MASTER AND SERVANT. Injured railroad employee must prove negligence under federal act.

In an action against a railroad under the federal Employers' Liability Act (U. S. Comp. St., sections 8657--8665), for injuries to railroad employee, the employee was required to prove negligence by railroad, since in such case there is neither a statutory nor a common-law presumption of negligence.

3. MASTER AND SERVANT. Railroad not guarantor of safety under federal act.

A railroad is not liable under the federal Employers' Liability Act (U. S. Comp. St., sections 8657--8665), for injuries to an employee unless negligent, since a railroad is not a guarantor of the safety of the place of work, but is required merely to exercise ordinary care and prudence to the end that the place in which the work is to be done may be reasonably safe.

4 TRIAL. Facts which plaintiff's evidence tends to prove treated as true on defendant's motion for directed verdict.

On defendant's motion for a directed verdict the court must treat plaintiff's evidence as proving every material fact which it proves or tends to prove directly or inferentially.

5. MASTER AND SERVANT. Evidence of negligence as to brakeman struck by timber at lumber company's plant held insufficient for jury.

Brakeman injured when timber slid off ramp adjoining spur track where the brakeman was engaged in switching cars, held not entitled to go to jury on question of negligence of railroad under the federal Employers' Liability Act (U. S. Comp. St., sections 8657--8665), in view of failure to show that the timber was thrown down the ramp by an employee of the railroad or that railroad could have anticipated that employee would be injured by reason of proximity of tracks to ramps or manner of construction of ramps or use which had been made thereof by the lumber company, it being inferable that the timber was thrown by an employee of the lumber company or some inter-meddler.

HOLDEN and COOK, JJ., dissenting.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.

Suit by M. B. Penton against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Bozeman & Cameron, H. B. Monroe and M. M. Lemann, for appellant.

I. Defendant entitled to peremptory instruction. Our first proposition and the one to which our argument will be in great part devoted is that the court below erred in refusing to direct the jury to find for the defendant. This is based on a two-fold contention; namely (1) that plaintiff failed to prove his case, and, (2) that he assumed the risk of his injury.

A. Plaintiff failed to make out his case.

The pleadings admit that both the plaintiff and defendant were, at the time of the injury, engaged in work pertaining to interstate commerce, and that the case is governed by the Federal Employer's Liability Act (Act of April 22, 1909, chapter 149, 35 Statute 65, U. S. Compiled Statutes, 1916, sections 8657-8665) thus removing this question from controversy.

This being true, it is equally beyond controversy that negligence is the basis of plaintiff's suit, and must be affirmatively proven before he is entitled to recover. 1 Roberts' Federal Liabilities of Carriers, section 528; Y. & M. V. R. R. Company v. McCaskell, 118 Miss. 629, 79 So. 817. On this subject generally, see the following authorities: 3 Elliott on Railroads, secs. 656-659; N. O. & N.E. R. R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Parrot v. Wells, 15 Wall, 524, 537, 21 L.Ed. 206, 211; Patton v. T. & P. Ry. Co., 179 U.S. 658, 663, 45 L.Ed. 361, 21 S.Ct. 275; Looney v. Metropolitan R. R. Co., 200 U.S. 480, 50 L.Ed. 564, 26 S.Ct. 303; 19 Am. Negligence Rpt. 627; Southern Ry. Co. v. Bennett, 233 U.S. 80, 58 L.Ed. 860, 34 S.Ct. 566, 10 N.C. C. A. 853; Reese v. Philadelphia, etc., R. R. Co., 239 U.S. 463, 60 L.Ed. 483, 36 S.Ct. 134, 10 N.C. C. A. 926; Illinois Central R. R. Co. v. Skaggs, 240 U.S. 66, 60 L.Ed. 528, 36 S.Ct. 249; Great Northern R. R. Co. v. Wiels, 240 U.S. 444, 60 L.Ed. 732, 36 S.Ct. 406; Southern Ry. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030, 36 S.Ct. 558; C. & N.W. R. R. Co. v. Bower, 241 U.S. 470, 60 L.Ed. 1107, 36 S.Ct. 624; Pope v. R. R. Co., 98 Miss. 822, 54 So. 369; A. & V. Ry. Co. v. White, 106 Miss. 141, 63 So. 345; Miss. Central R. R. Co. v. Bennett, 111 Miss. 163, 71 So. 310.

No presumption of negligence on the part of the defendant is indulged, whether it arises from statute (N. O. & N.E. R. R. Co. v. Harris, supra) or from principles of the common law. The doctrine of res ipsa loquitur cannot possibly apply to the facts of the case at bar. Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 45 L.Ed. 361, 21 S.Ct. 275; Looney v. Metropolitan R. R. Co., 200 U.S. 480, 50 L.Ed. 564, 26 S.Ct. 303, 19 Am. Neg. Rep. 627; Great Northern Ry. Company v. Wiells, 240 U.S. 444, 60 L.Ed. 732.

From the above it is plain that the burden rests upon the plaintiff to prove that he was injured by reason of the negligence of the defendant proximately causing his injuries.

The concept, negligence, involves three essential elements: "A duty, or obligation, which the defendant is under to protect the plaintiff from injury, a failure to discharge that duty, and the injury resulting from the failure." 20 R. C. L. 10. What, then, is the duty charged by the plaintiff as resting on the defendant, the breach of which is the predicate for the supposed right of action?

While the plaintiff does not specifically invoke the doctrine, that the master must furnish a safe place to work in his declaration, it is evident that it is that alleged duty which he relies on. This raises the question, therefore, does the duty of the master to furnish a safe place to work apply to the facts of this case?

It is our contention that the safe-place-to-work doctrine does not apply to the case before the court, because the conditions surrounding plaintiff's work were constantly changing and he was hurt while on the premises of another.

There is a line of Mississippi cases which we cite as authority for the proposition that the safe-place-to-work doctrine does not apply to the case before the court. It will be conceded by all, of course, that the decisions of the Federal court control: Roberts' Federal Liabilities of Carriers, secs. 731, 928, 933-6, 949, and 986, and authorities cited.

The decisions of this court, however, will be found persuasive, and, in the absence of some holding to the contrary by the Federal court, will control. N. O. & N.E. R. R. Co. v. Williams, 96 Miss. 373, 53 So. 619; Cybur Lumber Company v. Erkhart, 118 Miss. 401, 79 So. 235. See generally along this line: 1 Roberts' Federal Liabilities of Carriers, sec. 942; 3 Labatt's Master & Servant, secs. 2466-3140; Int. Ship Building Co. v. Carter, 83 So. 413; Y. & M. V. R. R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817; So. Ry. Co. v. Shook, 43 So. 579; Armour v. Hahan, 111 U.S. 313, 28 L.Ed. 440; Gulf, etc., R. R. Co. v. Jackson, 65 F. 48, 12 C. C. A. 507; Finlayson v. Utica Mining & Milling Co., 67 F. 507, 14 C. C. A. 492.

The other reason why the doctrine of a safe place to work has no application to the case before the court is that the plaintiff was, when injured, on the premises of another. There is no direct testimony that the actual track belonged to the mill company. The testimony showed, without contradiction, that the ramps and all of the other equipment belonged to the saw mill company, but there is no evidence, one way or the other, directly establishing the ownership of the spur track (pp. 120, et seq.). As indicated, however, in the statement of facts, the plaintiff alleged in his declaration filed against the Southern Lumber and Timber Company, that the spur track was constructed and owned by the said lumber company. This would be presumed, in any event, in the absence of testimony, from the very location of the track--entirely on the premises of the lumber company.

The situation, then, involves the duty owed by a master with reference to a servant whom he has sent upon the premises of another. The general rule is that the master owes no duty with reference to those premises, unless he has knowledge of the existence of some defect, which he ought to advise the servant of. This rule is well stated in the case of Wilson v. Valley Improvement Company, 69 W.Va. 779, 73 S.E. 64; Am. Annotated Cases, 1913B, 791. For a further discussion of this rule, see: Labatt's Master & Servant, sec. 2827; American Bridge Co. v. Bainum, 146 F. 367, 76 C. C. A. 633; Fairbanks, Morse & Co. v. Walker, 160 F. 896, 88 C. C. A. 78; Essen, et ux. v. City of Philadelphia, 183 F. 414, 105 C. C. A. 648.

For either of the reasons above assigned, thereafter, we submit that the doctrine that a master is required to furnish the servant a reasonably safe place in which to work, has no application at all in the present case.

No evidence that place is unsafe--The plaintiff produced no evidence that the place to which he was directed to go and in which he was injured, was unsafe at all. The duty of the master to furnish a safe place to work has to do only with the premises themselves, and in the...