Allen v. Yazoo & Mississippi Valley Railroad Company

• Decision Date: 04 June 1906
• Citation: 40 So. 1009,88 Miss. 25
• Parties: CLARENCE ALLEN v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

40 So. 1009

88 Miss. 25

CLARENCE ALLEN v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

Supreme Court of Mississippi

June 4, 1906

April 1906

FROM the circuit court of Leflore county, HON. A. MCC. KIMBROUGH Judge.

Allen the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a final judgment for the defendant, sustaining a demurrer to an amended declaration and dismissing the suit, the plaintiff appealed to the supreme court. The opinion of the court states the case.

Reversed and remanded.

S. R. Coleman, for appellant.

The fact that the servant at the time he was injured was complying with a direct, specific personal order of his master or his master's representative, has, it is well settled, a material bearing upon the question whether he can hold the master responsible. 142 Mass. 316.

The master incurs no especial responsibility by ordering the servant to perform one of his ordinary duties in the regular course of his work. Davis v. Detroit, etc., R. R. Co., 4 Am. Rep. (Mich.), 364; 159 Mass. 154. The facts of the case of Truly v. Lumber Company, 83 Miss. 430 (s.c., 30 So. 4), is in line with these last authorities. Truly was employed to push a lumber car loaded with lumber and acted under general orders, and in the line of his usual and ordinary employment was injured. This case is for many reasons not a parallel case with the case at bar.

But by almost all courts it is held that the fact of the servant's having been directly ordered to do the act which caused the injury introduces into the situation a differentiating circumstance, which will render his contributory negligence a question for the jury in nearly every conceivable state of the evidence. It does not follow that because the servant could justify a disobedience of the order he is guilty of negligence in obeying it. 96 Mo. 297.

Applying the principle of liability of the master for injuries received by his servant while obeying his direct orders, to the facts of this case as alleged in the declaration, we find the following cases: Section hand not negligent when he obeys orders to take hand car off of track when a train is close at hand. Texas, etc., R. R. Co. v. Gaines, 26 S.W. (Texas), 873. Where a gang of men engaged in raising a track by putting stone under it on the sudden approach of a train is ordered to take off some stone remaining on the track, and immediately attempts to do so, without opportunity to observe and calculate the distance to the train or its speed, he is not necessarily guilty of contributory negligence such as will defeat his recovery. Brice v. Louisville, etc., R. R. Co., 96 Mo. 297; 9 S.W. 289. In this case it was held that plaintiff was entitled under these facts to have his case go to the jury. See also, 89 N.Y. 375. It was held not negligent for a section man to try to get a hand car off the track when a train was approaching. 108 Mo. 322. Section man not necessarily negligent in attempting, at the command of his foreman, to remove a hand car out of the way of a slowly approaching train. 47 Minn. 340. Injury received while under orders removing dangerous obstructions from the track as the train was approaching. Gulf, etc., R. R. Co. v. Duvall, 35 S.W. (Texas), 699.

It has been held that "a section hand engaged under the direction of a foreman of a gang in attempting to remove a hand car from the track in order to avoid an approaching train, had a right to presume that the foreman, who is in a position to devote his whole attention to the approaching train and the efforts of his men to get the hand car off the track, will give such directions as will protect him." 85 Ark. 135. And, as already quoted, "Obedience to an order is not contributory negligence in any case in which the servant had a right to assume that the master will warn him as to any danger which the service may involve." See 8 N.Y. 717; 100 Iowa 441.

Section foreman is such a superior officer as will make railroad company liable because of orders given by him. See many cases cited in note, Dallemaded v. Saalfeldt, 48 L. R. A., 765.

Mayes & Longstreet, for appellee.

[The brief of counsel for appellee was lost, or withdrawn from the record before it reached the reporter.]

OPINION

MAYES, J.

There was an original declaration filed in this case, and a demurrer filed thereto, which was sustained by the court. Afterwards an amended declaration was filed, which alleged in substance that Clarence Allen was a section hand, working on the Yazoo & Mississippi Valley Railroad; that he was under the control and orders of one Parker, an employe of the company acting in the capacity as foreman of the section gang, with the right to employ and discharge hands and perform such other duties as devolved upon a foreman; that these section hands under the direction of Parker kept the roadbed in repair and did other necessary work on the road. The declaration then...