Bradford Construction Co. v. Heflin

Decision Date29 October 1906
Citation88 Miss. 314,42 So. 174
CourtMississippi Supreme Court
PartiesBRADFORD CONSTRUCTION COMPANY v. THOMAS W. HEFLIN

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Heflin the appellee, was plaintiff in the court below; the construction company, a West Virginia corporation, the appellant, and the Gulf and Ship Island Railroad Company, a Mississippi corporation, were defendants there. The judgment of the trial court was against Heflin, the appellee, in favor of the railroad company, but in favor of Heflin against the construction company, and the construction company appealed to the supreme court; but Heflin, the appellee, did not appeal from the judgment acquitting the railroad company from liability.

The plaintiff demanded damages for personal injuries received by him because of the negligence of another employe. Heflin was in the employ of the construction company, which was engaged under contract with the railroad company, in building a new line of railway track for said railroad company from Mendenhall, in Simpson county, to Columbia, in Marion county. In carrying out its contract in the construction of the line the construction company had leased from the railroad company some cars and engines, and was using some of these leased cars and one of the leased engines at the time Heflin received his injuries. The work being done at that time was unloading dirt from flat cars in order to make a fill. The crew was composed of a conductor in charge, an engineer fireman, two brakemen, and two laborers. Heflin was one of the laborers; his duties being to remove with a shovel the dirt which fell between the cars when the sweep or plow used in moving the dirt was pulled from car to car, which was done by means of a cable extending from the sweep or plow to the locomotive, being attached to each. On the occasion in question the plow had been drawn out of place, and Heflin, with others, undertook to prize it back into its place, using an iron bar as a lever. While so engaged, the fireman, who was on the engine, moved the engine forward by order of the engineer, as he claimed, but without order from the conductor. This pulled the cable taut and moved the plow, causing the iron bar to strike and injure the plaintiff. The suit was a joint one against the two companies. On the trial the court below gave a peremptory instruction for the railroad company, but at plaintiff's request gave a like instruction in plaintiff's favor against the construction company, and the jury assessed damages at $ 2,500.

On appeal, in answer to the ideas which were urged upon and which controlled the trial court, the appellant contended that the Gulf & Ship Island Railroad Company and the Bradford Construction Company are two separate and distinct corporations, one being a railroad company, authorized by its charter to actually engage in the operation of a steam railroad and in the transportation of freight and passengers as a common carrier, while the other was chartered as a construction company simply, and is not authorized to operate a railroad, but is authorized to build or construct roadbeds and railroad tracks; that the two corporations had contracted one with the other for the construction of the new line of railroad, which the construction company was building for the railroad company, and that all their acts were separate and distinct, and there was no unity of interest or joint liability to Heflin for the injuries received by him; that the judgment in favor of the railroad company, unappealed from by Heflin, precluded any recovery by him against appellant on the idea that the two corporations were and are identical. It was further contended by appellant that Heflin and the fireman, to whose negligence the injuries are attributed, were fellow servants, employed by appellant in the construction of a railroad, engaged in the same kind of work and subject to the orders of the same superior officer, the conductor in charge of the crew; that they were fellow servants in the particular instance just the same as if the scoop had been operated by hand, or pulley, or other device; that the operation of the plow in the removal of dirt from the flat cars by steam furnished by the engine was an incident in the work of construction; and that such operation of the scoop or plow by the steam engine was in no sense the operation of a railroad train. Appellant insisted upon a strict construction of sec. 193 of the constitution of Mississippi of 1890, since it is in derogation of the common law. Said section is as follows:

"SEC. 193. Every employe of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employes, as are allowed by law to other persons not employes, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about a different piece of work. Knowledge by any employe injured, of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines voluntarily operated by them. Where death ensues from any injury to employes, the legal or personal representatives of the person injured shall have the same right and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, express or implied, made by an employe to waive benefit of this section shall be null and void; and this section shall not be construed to deprive any employe of a corporation or his legal or personal representative of any right or remedy that he now has by the law of the land. The legislature may extend the remedies herein provided for to any other class of employes."

Appellant contended that a railroad corporation, within the meaning of this section, is one engaged in the transportation of freight and passengers as a common carrier, whose duties are quasi public in their nature, and that any other corporation does not come within the provision of the section; and, therefore, Heflin not being an employe of a railroad corporation within the meaning of the section, and the fireman not being such an employe, it has no application to the case, and no liability rests upon appellant for the injury.

The propositions advanced by the appellee were: "(1) In view of the practical and apparent unity between the two corporations, Heflin must be deemed the employe of the Gulf & Ship Island Railroad Company, and therefore no question as to his being a fellow servant of the construction company arises. (2) The construction company, in operating the train in question, was a railroad corporation, within section 193 of the constitution." Appellee contended that the criterion of liability should be the character of the work performed and the hazard connected therewith; that the liability should be the same for a construction company building a railroad and operating steam engines and cars in performing such work as for a railroad company, performing a similar work; that the operation of the train was the same, and the hazard and danger to employes were the same, as if engaged in the transportation of freight or passengers as a common carrier; that, under a contract with the Gulf & Ship Island Railroad Company, the construction company was given the right to run trains subject to the rules of the railroad company, and the crew was governed by the same rules as the crews of the railroad company; that the distinction, between the two corporations is only in name; and that the construction company was a railroad corporation within the letter and spirit of the constitutional provision. "(3) If not within sec. 193, then appellant was a corporation, and liable under chapter 66, page 84, Acts of 1898, which applies to all corporations; and this, notwithstanding the decision in the Ballard case" (which should be overruled). "(4) The negligent fireman (acting engineer) was in a different department of labor from plaintiff." Appellee further contended that he and the fireman (acting engineer), through whose negligence he received the injuries complained of, were in different departments of labor, their duties being entirely different, and that appellee could not reasonably contemplate the danger or hazard which might result from the negligence of the acting engineer.

Reversed and remanded.

McWillie & Thompson, and James H. Neville, for appellant.

The common law fellow servant rule is too well known to require citation of authority in its support. We will, however, be excused for calling attention to a few of this court's decisions anouncing and applying the rule. Vicksburg etc., Railroad Co. v. Wilkins, 47 Miss. 404; New Orleans, etc., Railroad Co. v. Hughes, 49 Miss. 258; Howd v. Mississippi, etc., Railroad Co., 50 Miss. 178; Memphis, etc., Railroad Co. v. Thomas, 51 Miss. 637; Chicago, etc., Railroad Co. v. Doyle, 60 Miss. 977; McMaster v. Illinois, etc., Railroad Co., 65 Miss. 264 (s.c., 4 So. 59); Louisville, etc., Railway Co. v. Petty, 67 Miss. 255; Lagrone v. Mobile, etc., Railroad Co., 67 Miss. 592 (s.c., 7 So. 432); Millsaps v. Louisville, etc., Railway Co., 69 Miss. 423 (s.c., 13 So. 696). The rule has been modified in this state only so far as concerns the servants of railroad corporations. Sec. 193 of the constitution of 1890, and the uncondemned statutes...

To continue reading

Request your trial
43 cases
  • New Deemer Mfg. Co. v. Alexander
    • United States
    • Mississippi Supreme Court
    • January 1, 1920
    ... ... Miss. 423; Illinois Central R. R. Co. v ... Bishop, 76 Miss. 810; Bradford Construction ... Co. v. Heflin, 88 Miss. 314; ... Railroad Company v. Ford, 108 ... ...
  • Kiley v. Chi., M. & St. P. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • February 5, 1909
    ...counsel from other states, also based on the logic of the Iowa case, were not referred to in the court's opinion. Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 South. 174, 12 L. R. A. (N. S.) 1040;Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 South. 533, 62 L. R. A. 407, 9......
  • Curry & Turner Const. Co., Inc. v. Bryan
    • United States
    • Mississippi Supreme Court
    • January 2, 1939
    ... ... Action ... by Baremore Bryan against the Curry & Turner Construction ... Company, Inc., and others for injuries sustained while ... performing duties as named ... Givens v. Southern R. Co., 49 So. 180, 94 Miss. 830, ... 22 L.R.A. (N.S) 971; Bradford Construction Co. v ... Heflin, 42 So. 174, 88 Miss. 314, 12 L.R.A. (N.S) 1040, ... 8 Ann. Cas ... ...
  • Mclemore & Mcarthur v. Rogers
    • United States
    • Mississippi Supreme Court
    • March 5, 1934
    ... ... May, 102 So. 854, 138 Miss. 27; Givens v. Sou. Ry ... Co., 49 So. 180, 94 Miss. 830; Bradford Const. Co ... v. Heflin, 42 So. 174, 88 Miss. 314; Millsaps v. Ry ... Co., 69 Miss. 423; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT