Buckner v. Richmond & D.R. Co.

Decision Date27 May 1895
Citation18 So. 449,72 Miss. 873
PartiesE. A. BUCKNER v. RICHMOND & DANVILLE RAILROAD CO. ET AL
CourtMississippi Supreme Court

FROM the circuit court of Clay county, HON. C. H. CAMPBELL, Judge.

Action by E. A. Buckner, section foreman, to recover for personal injuries sustained while operating a hand-car on the Georgia Pacific Railway, which, at the time of the accident, June 12 1892, was under the management of the Richmond & Danville Railroad Company, as lessee. Both companies are made defendants, and the declaration alleges that the railroad was being operated by both, by one as the owner and by the other as lessee. It was, however, conceded in the lower court, and in this court, that, in fact, only the lessee was operating the road, and that the only connection the Georgia Pacific Railway Company had with it was as owner; that it had turned over to the Richmond & Danville Railroad Company, the lessee its railroad and all its rolling stock and machinery including the defective hand-car which, it is claimed, was the cause of the injury to plaintiff. The declaration avers that plaintiff was employed as section foreman, and was working under the orders of one Nelson, the road supervisor who gave him the hand-car, which was defective in that the "wheels were run by means of a lever, which, at each end, projected to within about sixteen inches of the front and rear of said car, making it exceedingly dangerous to ride on said car, as there was danger of the ends of the lever striking persons on the car and knocking them off, which said company knew; and there was further defect in said machinery of the car, in that one of the front wheels was broken, so that it could not be safely run on the track, but was likely to jump off and injure persons on it, and for that reason said car had to be reversed and run backward, which put the brake in the front and under the passengers on it, so that the brake could not be reached without great difficulty and delay in case of accident." The declaration further alleges that while the hand-car was in motion, Nelson ordered plaintiff to stop the car, and plaintiff, in obeying said order, "signaled the hands to stop, and the lever struck his arm and knocked him off," etc. To this declaration, defendants demurred, on the ground that it showed no negligence on the part of defendants, and because it showed contributory negligence on the part of plaintiff. The Georgia Pacific Railway Company also demurred, on the ground that the declaration shows no liability on its part. The court sustained the demurrer, and plaintiff declined to amend. There was judgment final for defendants, and plaintiff appeals.

Counsel on both Sides unite in the request that the court decide, so far as the Georgia Pacific Railway Company is concerned, the following questions: (1) Whether that company is liable on the ground that it furnished to the lessee company the defective hand-car which injured plaintiff; (2) whether the act of incorporation of the Georgia Pacific Railway Company, which provides that it might lease its railroad to another, is a public act of which the court will take judicial notice, and (3) whether the lessor company, by reason of the lease, is absolved from liability for accidents caused by defective machinery, where the statute authorizes the lease, but does not, in terms, exempt it from such liability. It is admitted that the Georgia Pacific Railway Company made the lease to the Richmond & Danville Railway Company under authority of the act of 1882 (Laws, p. 37).

Reversed and remanded.

Critz & Beckett, for appellant.

It is generally held that where defective track or machinery, which caused the accident, is furnished by the lessor, it remains liable, notwithstanding the lease. 1 Redf. on Railways, 589, and cases cited; 32 Am. & Eng. R. R. Cas., 408; 39 Ib., 334; 53 Ib., 56-62.

The better authority is that, even where the lease is executed under authority of the statute, unless exemption from liability is expressly given, the lessor remains liable for injuries caused by defective machinery. 19 Am. & Eng. Enc. L., 899; 28 S. C., 401; 33 Ib., 427; 80 Me. 62; 17 Wall., 450; 1 Redf. on Railways, 588.

Under § 1054, code 1880, railroads are liable for all damages sustained because of mismanagement of their agents or clerks, or for the mismanagement of their engines, etc. Under similar statutes, it is held that the lessee is the agent of the lessor. 28 Vt. 103; 28 S. C., 401; 36 Am. & Eng. R. R. Cas., 445; 8 Allen, 438.

This ought to be the rule in our state, because our statute provides that no mortgage on the income or rolling stock of railroads shall be valid against claims for damages to persons or property to a certain amount. Code 1880, § 1033. A lease is a species of incumbrance. The Georgia Pacific Railway Company has great advantages from the state, and it should not be able to shirk its responsibility without express authority.

The declaration shows negligence on the part of defendants. It is useless to argue this assignment of error in detail, since the declaration states that the defects in the machinery of the hand-car were the immediate and direct cause of plaintiff's injuries, and that said defects were well known to the defendants. If a railroad company requires its employes to use crippled cars in its business, it is liable for accidents caused thereby. Railroad Co. v. Bowles, 71 Miss. 1003. And so, when it requires them to use defective wheels, contributory negligence is no defense. Welsh v. Railroad Co., 70 Miss. 20; 80 Tex. 97; 78 Mich. 513; 53 Am. & Eng. R. R. Cas., 135; 48 Ib., 331.

Under our constitution, knowledge of the danger is no defense. Const. 1890, § 193.

A. F. Fox, for appellees.

Ordinarily, a lease of a railroad without legislative authority, is void. But when the sovereign power confers the right on a railroad company to lease all of its railroad and rolling stock, and to surrender control and management thereof, its responsibility terminates, and thereafter devolves on those having the right to control and direct the Services of the employes. If this were a case involving negligence of the lessor in the original construction of the roadbed or of depots, there would be some reason for holding the lessor liable. But the lessor is under no liability to the servant of the lessee, with whom it has no privity. The case does not involve any duty to the public. The public has no concern with the relations of master and servant. It involves purely personal and private obligations. The doctrine of respondeat superior does not apply as to the lessor, because the relation of master and servant did not exist. This view is supported by the great weight of authority. 67 Tex. 593; 67 N.Y. 425; 38 Am. & Eng. R. R. Cas., 225; 63 Me. 68; 28 Kan. 622; Pearce on Railroads, 622; 3 Woods' Railway L., 1687; Patterson Ry. Ac. L., 132.

The declaration shows no causal connection between the defects and the injury. It is apparent that plaintiff would never have been injured if he had used proper caution in giving the signal to stop. He knew of the defects in the car, and was willing to operate it notwithstanding the danger. He assumed all risk incident thereto, and so was bound to exercise care commensurate with the danger. Beach, Con. Neg., 363; 3 Wood Ry. L., 1492; 5 Am. & Eng. R. Cas., 355; 14 Am. & Eng. Enc. L., 909.

The case is not affected by 193, constitution 1890. This merely abrogates the old rule that the use of machinery by an employe, with knowledge of its defects, was negligence per se. The employe is still responsible for his own contributory negligence. Welsh v. Railway Co., 70 Miss. 20. See, also, Railway Co. v. Allen, 99 Ala. 359.

OPINION

CAMPBELL, Special J.

The averment of the declaration that the hand-car...

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