Alabama & V. R. Co. v. Fountain

• Citation: 145 Miss. 515,111 So. 153
• Decision Date: 31 January 1927
• Docket Number: 26146
• Parties: ALABAMA & V. R. CO. v. FOUNTAIN. [*]
• Court: United States State Supreme Court of Mississippi

111 So. 153

145 Miss. 515

ALABAMA & V. R. CO. v. FOUNTAIN. ^[*]

No. 26146

Supreme Court of Mississippi

January 31, 1927

Division B

. (Division B.)

1. MASTER AND SERVANT. Railroad's negligence in inspecting cable, whose breaking caused injury to employee, held question for jury.

Where an employee of a railroad is killed by the breaking of a wire cable operated by steam, and where both the railroad and employee, at the time, were engaged in interstate commerce and there is testimony that the proper way to inspect a cable is by taking it and bending and releasing it, to see whether it has lost its tension and flexibility, and the proof shows that no such inspection was made by the railroad, and the cable broke in lifting a much less weight than it was manufactured to lift, and such cable had been in use for five or six years, and was liable to become brittle, and that such method of inspection would discover that fact, and other evidence on the part of the company shows it was inspected in a different manner, the proof presents a question for the jury as to whether or not the railroad company was guilty of negligence in reference to the inspection.

2 TRIAL. Instruction that, if railroad knew or should have known of defect, and cable's breaking therefrom proximately caused employee's death, to find for plaintiff was not reversible error when considered with other instructions.

An instruction in such case for the plaintiff which instructs the jury that it was the duty of the defendant railroad company to furnish deceased with a reasonably safe place to work, and if the jury believe from the evidence that the cable in question that broke was not sufficiently strong, or was defective when it broke, and that defendant knew or should have known of such defect, if such there was, and that said cable was not reasonably safe for the kind of work it was doing when it broke, and that the breaking of the cable was the proximate cause of the death of deceased, and that the railroad company was guilty of negligence in furnishing such cable if it was defective, and that such was the proximate cause of the death of deceased they should find for the plaintiff, and this is not reversible error, when the instruction is considered in connection with instructions which tell the jury that the mere breaking of the cable was not evidence that the defendant was guilty of negligence, and defining the railroad company's duty in reference to furnishing such cable.

3. TRIAL. Instructions for both plaintiff and defendant are to be construed together; if all instructions construed together fairly present law, defect in single instruction is not cause for reversal.

The instructions for the plaintiff and defendant are to be taken and construed together and if, when so construed, they fairly present the law applicable to the facts, a judgment will not be reversed because of any defect in any single instruction.

HON. G. E. WILSON, Judge.

APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.

Action by Vallerie Fountain, administratrix of Flex Fountain, deceased, against the Alabama & Vicksburg Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

Charles N. Burch, Sidney L. McLaurin, Hirsch, Dent & Landau, and R. H. & J. H. Thompson, for appellant.

I. The facts of the case show the case to be under the Federal Employer's Liability Act. The United States supreme Court decisions so determine. Pederson v. Delaware L. & W. R. Co., 229 U.S. 446; N. Y. Cent. R. R. Co. v. Porter, 249 U.S. 168; Philadelphia, etc., R. R. Co., 250 U.S. 130; So. Pac. R. R. Co. v. Industrial Accident Commission, 251 U.S. 259.

The admission by plaintiff in which the defendant concurred that the case was one under the Federal Employer's Liability Act and the fact that the case was tried in the circuit court as one within the act, seemingly at least, should estop either and both parties from controverting in this court the application of the Federal statute to the case. Chicago, etc., R. R. Co. v. Harrington, 241 U.S. 177; but see Davis, Director General, v. Green, Admx., 260 U.S. 349.

II. The case being one under the Federal Employer's Liability Act, it follows that the Mississippi prima-facie statute, Code of 1906, section 1985 section 1645, Hemingway's Code) making proof of injury inflicted by the running of engines, cars, etc., of a railroad company prima-facie evidence of the want of reasonable care by the railroad company, has no application here. Three United States supreme court decisions, each reviewing cases decided by this court upon writ of error, conclusively established this point. N. O., etc., R. R. Co. v. Harris, 247 U.S. 367; N. O., etc, R. R. Co. v. Scarlet, 549 U.S. 528; Yazoo, etc., R. R. Co. v. Mullins, 249 U.S. 531.

And it is equally true that no state statute will preclude any defense, such as the statute of this state abolishing assumption of risk as a defense if the defense be warranted under the Federal Employer's Liability Act, it being complete in itself. Gulf, etc., R. R. Co. v. Simmons, 109 So. 857.

III. Our claim is that the plaintiff failed to make out a case entitling her to a recovery against the railway company because there was no proof that her intestate and former husband came to his death by reason of any negligence or wrongdoing of the defendant and the court below should have given the peremptory instruction asked by defendant.

The plaintiff's argument is this: "The cable broke; Fountain was killed; therefore, the company was negligent since the cable would not have broken but for its negligence." It must be borne in mind that this is a case under the Federal Employer's Liability Act, and the Federal rule as to when a directed verdict should be given is applicable. Small Co. v. Lamhorn & Co., 267 U.S. 248.

This court has said it would set aside a verdict, even when the evidence is conflicting, if the verdict is "contrary to the overwhelming weight of convincing evidence." Mobile, etc., R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.

IV. The res ipsa loquitur doctrine is not applicable to the case. To apply this doctrine to this case, would be to approve and adopt the process of reasoning known as the post hoc, ergo propter argument, heretofore condemned by this court. Chicago, etc., R. R. Co. v. Doyle, 60 Miss. 977, 986; Scooter v. Maggison, 110 So. 248.

The Federal courts do not apply the doctrine to suits by servants or employees against the master or employer, and, also, they guardedly and seldom apply the doctrine to other cases. A conspicuous case, perhaps the leading Federal decision showing the doctrine inapplicable to suits between master and servant is Patton v. Texas Pacific R. R. Co., 179 U.S. 658, s. c. 45 L.Ed. 361. See, also, Fitzgerald v. So. R. R. Co., 6 L. R. A. (N. S.) at 344; Minneapolis, etc., Co. v. Cronon (U. S. Circuit Court of Appeals), 166 F. 651, s. c. 20 L. R. A. (N. S.) 817. N. O., etc., R. R. Co. v. Scarlet, 249 U.S. 528, is much in point. Another authority worthy of attention is Chicago, etc., R. R. Co. v. Payne, 8 F.2d 332.

The supreme court of the United States has defined negligence to be "the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done." R. R. Co. v. Jones, 95 U.S. 441, 24 L.Ed. 506; the Nitro-Glycerine case, 15 Wall 536, 21 L.Ed. 206.

We cannot see and we believe this court cannot find from the testimony in this case that our client, the appellant, (a) failed to do anything that a reasonable and prudent person ordinarily would have done under the circumstances of the situation shown by the evidence, or (b) that it did anything such person under the existing circumstances would not have done, and (c) the plaintiff in this case has not proved that the defendant by its act or omission has violated any duty encumbent on it which caused the death of her intestate. The evidence shows that her intestate came to his death by a pure accident.

V. For state decisions applying the res ipsa loquitur doctrine in suits between master and servant, see: Lampton v. Atkins, 129 Miss. 600, 92 So. 638; A. & V. R. R. Co. v. Groome, 97 Miss. 201; Hope v. Natchez, etc., R. R. Co., 98 Miss. 822, 54 So. 369; M. C. R. R. Co. v. Bennett, 111 Miss. 163, 71 So. 310; A. & V. R. R. Co. v. White, 106 Miss. 141, 63 So. 345, reaffirming the law as announced in the Hope case, 98 Miss. 822, 54 So. 369.

VI. Assumption of risks. The suit being one under the Federal Employer's Liability Act, the state statute abolishing the assumption of risk as a defense can have no applications to the case. The Federal Safety Appliance Act of March 2, 1893, chapter 196, section 8; 27 Statutes at Large 532 (U. S. Compiled Statutes, 1918, section 8612) abolishes assumption of risks as a defense only in cases where an employee is injured, or killed, by a locomotive, car or train in use contrary to the provisions of the Safety Appliance Act of Congress. See, also, Federal Employer's Liability Act of April 22, 1908, chapter 140, section 5; 35 Statutes at Large 66 (U. S. Compiled Statutes, 1918, section 8660, and Seabord, etc., R. R. Co. v. Horton, 223 U.S. 492, construing statute.

One instruction erroneously told the jury that it was the duty of the railway company to furnish the decedent a reasonably safe place in which to work, thus bringing to the attention of the jury a subject-matter having no application to the case. The safe-place-to-work doctrine applies only, as a general rule, to permanent places of labor, such as factories, mines and the like. It had no more application to the case at bar than it had to N. O.,...