Alabama & V. Ry. Co. v. Overstreet

• Decision Date: 30 January 1905
• Citation: 37 So. 819,85 Miss. 78
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. MARGARET A. OVERSTREET ET AL
• Court: Mississippi Supreme Court

37 So. 819

85 Miss. 78

ALABAMA & VICKSBURG RAILWAY CO. v. MARGARET A. OVERSTREET ET AL

Supreme Court of Mississippi

January 30, 1905

FROM the circuit court of Newton county, HON. JOHN R. ENOCHS Judge.

This was a suit for damages for the death of T. R. Overstreet alleged to have been wrongfully caused by the railway company. Deceased was the husband of the plaintiff, Margaret A. Overstreet, and the father of the other plaintiffs. It is charged in the declaration that deceased was killed through the negligence of a superior officer or servant of the railway company; that the decedent was an employe of the company, being a member of a bridge crew; and that at the time the fatal injuries were received he was engaged, with other members of the crew, operating under the orders of the foreman, in building a bridge, and he received the fatal injuries by the falling of a large piece of bridge timber upon him, which fell because of the negligence of the superior officer, or foreman, who had the right to control decedent and his fellow-servants. The testimony for plaintiffs was that decedent at time of the injury was a healthy, sound man, thirty-five years old, and earning $ 1.50 per day; that he had no property, and left his widow and children dependent on her father for support; that decedent and several others were engaged at work on the ground under the bridge when the foreman came up and told two other workmen, Babbington and Briggs, to go upon the bridge and remove some braces, in order to move a bent that was desired removed, which they were doing, and had taken the bolts out of one brace and lowered it, and were working at another brace, the bolts having been taken out of it, when it fell and struck Overstreet, who was at work under the bridge, and killed him. Some of the witnesses testified that Hall, the foreman, instructed Babbington to go on top of the bridge and line the braces and take off the nuts, knock out the bolts and then lower the braces with a line. Babbington testified as follows: "He (Hall) told me to take off the nuts and knock out the bolts and get a line and lower them." Most of the witnesses said that Hall was present when the first brace was removed, and saw the way it was being done. Some said he was still present when the second one was being removed, and very near when it fell. Others said Hall was some distance away at the time the brace fell. Babbington testified that he did the work just as Hall told him to do it. Simpson, a witness for defendant, was asked by defendant's counsel what the custom with the gang was with reference to taking down braces. Plaintiffs objected to this question, and the court sustained the objection, to which defendant excepted. Two witnesses for plaintiffs had testified as to this custom. The instructions given for plaintiffs, objected to by defendant, are set out in the opinion of the court. There were verdict and judgment for plaintiffs for $ 10,000. Defendant's motion for a new trial was overruled, and it appealed to the supreme court.

Reversed and remanded.

McWillie & Thompson, for appellant.

1. To hold that railroad employes who are not engaged in the operation of the railroad, but in doing work which other persons and corporations do, are within the terms of sec. 193 of the constitution of 1890, and the statutes of the state (Code 1892, § 3559; Laws 1896, p. 97; Laws 1898, p. 82) would render these provisions violative of the Federal constitution, in that it would be depriving the railroad corporations of their property without due process of law, and denying to them the equal protection of the laws, as guaranteed by the fourteenth amendment to the constitution of the United States. The foreman of the bridge crew, because they were mere bridge builders or repairers, was a fellow-servant of the deceased, and the demurrer to defendant's third plea should have been overruled.

2. The first instruction for plaintiffs is erroneous, because it is not predicated of the testimony. The only evidence which can be claimed, with even a shadow of reason, as supporting the instruction, is the testimony of Babbington as to what Hall directed him to do. Babbington's testimony is that Hall instructed him "to take off the nuts and knock out the bolts and get a line and lower the brace." The instruction practically told the jury that this was sufficient evidence to justify a finding that Hall required the procedure to be in the order of events named or that he intended the work to be executed in that order, without any proof of either.

The defendant was certainly entitled to have the witness, Simpson, testify touching the custom in taking down braces, and it was error in the court below to sustain the plaintiffs' objection thereto. The error is not cured by the fact that the custom was fairly well proved by the plaintiffs through other witnesses. The defendant had the right to prove it beyond dispute or misunderstanding, which it no doubt could and would have done by Simpson had not the court prevented.

The fourth instruction for plaintiffs is erroneous in telling the jury that if they believe from the evidence that plaintiffs are entitled to recover they may consider (going away from the evidence) (1) decedent's physical condition, (2) the wages he was earning at the time of his death, (3) his future prospects for earning money and accumulating property, and (4) the probable length of the life of decedent, in fixing the amount of damages. The jury were not at all restricted to the testimony after determining that the plaintiffs were entitled to a recovery, but were then turned loose in estimating damages and authorized to act on their own knowledge or conjectures. Yazoo, etc., R. Co. v. Smith, 82 Miss. 656. There is not one particle of evidence showing or tending to show decedent's "future prospects for earning money and accumulating property," and there was no testimony (unless it could be inferred from his age and state of health by the jurors from common knowledge) of the probable length of decedent's life had he not been killed.

Ethridge & McBeath, for appellees.

1. Some of the witnesses say that Mr. Hall, foreman, instructed Babbington to go on top of the bridge and line the braces and take off the nuts, knock out the bolts, and then lower them with a line. Babbington, the man selected to do the work, and other witnesses say that Babbington was told to go on top and take off the nuts, knock out bolts, and then line and lower the braces. All agree, who undertake to locate Hall when the first sash or braces were lowered, that Hall was personally present when the first sash or brace was removed, and saw the way this was being done, and the brace or sash that fell and killed Overstreet was being removed the same way; that the only support to the braces...