Callahan Const. Co. v. Rayburn

• Decision Date: 11 October 1915
• Docket Number: 17419
• Citation: 69 So. 669,110 Miss. 107
• Court: Mississippi Supreme Court
• Parties: CALLAHAN CONST. CO. et al. v. RAYBURN

69 So. 669

110 Miss. 107

CALLAHAN CONST. CO. et al. v. RAYBURN

No. 17419

Supreme Court of Mississippi

October 11, 1915

APPEAL from the circuit court of Harrison county. HON. T. H BARRETT, Judge.

Suit by C. A. Rayburn against the Callahan Construction Company and the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendants appeal.

Appellant the Louisville & Nashville Railroad Company, desiring to have certain dirt excavated and removed from one point upon its right of way to another, entered into a contract with appellant Callahan Construction Company, by which the construction company undertook to do the work in accordance with the terms of the contract entered into. This contract provided how, when, from, and to where this dirt should be excavated and removed, and the compensation the construction company should receive therefor, but reserved to the railroad company no control over the means by which the work was to be accomplished except with reference to the running of trains over its road by the Callahan Company when moving the dirt from the place where it was excavated to the point on the railroad company's right of way where they desired to use it. That provision of the contract is as follows:

"All the work shall be done in such a manner as not to interfere with or delay the movement of the railroad company's trains, and all movements of the contractors' equipment over the railroad company's main and side tracks shall be under such rules and restrictions as said division superintendent may prescribe. The railroad company shall not be liable to the contractors for any loss or delay on account of contractors' trains being delayed by movements of the railroad company's revenue trains, it being understood and agreed that the contractors' trains shall at all times keep out of the way of the railroad company's trains, and the railroad company's trains shall have preference in movements over the main track."

"The contractors' train crews shall be such as are satisfactory to the railroad company's division superintendent, and shall be required to pass such examinations as to their fitness or efficiency as said division superintendent may prescribe. Any of the contractors' employees engaged in the movement of contractor's trains over the railroad company's main track who are not satisfactory to the railroad company's division superintendent, shall be discharged at his request."

This contract also contains a clause which provides that:

"It is further agreed that the work to be done under this contract shall not be sublet without the consent of the chief engineer of the railroad company, but shall be done by the contractors, parties to this contract, unless he approves of subletting it, in which event the contractors, parties to this agreement, shall be responsible for the proper performance of the contract."

With the consent of the railroad company's chief engineer according to undisputed evidence introduced on behalf of the Callahan Construction Company, this company entered into a contract with King & Clark, a partnership, by which King &amp Clark undertook to do for it the work it had agreed to do for the railroad company in accordance with the terms of its contract with that company; and thereafter the work was proceeded with by King & Clark in accordance with these contracts.

Appellee while in the employ of appellant railroad company was ordered by it to report to Callahan & Company for service on trains used by it in transporting dirt over the company's road. While so engaged he was injured by reason of the negligence of the fireman of the train upon which he was then discharging the duties of flagman. This fireman, together with the engineer--and, so far as the evidence discloses, all the other persons engaged in running the train -- was in the employ of King & Clark. The suit was filed against the railroad company and the construction company, King & Clark not being made parties thereto.

Judgment reversed in part, judgment affirmed in part.

Gregory L. Smith and Joel W. Goldsby, for appellants.

As the undisputed evidence showed that the plaintiff was injured by the negligence of the fireman and that the fireman was an employee either of the Callahan Construction Company or of King & Clark, and not an employee of the Louisville &amp Nashville Railroad Company, the railroad could not be made liable for injuries resulting from his negligence.

It is true that it was the duty of the railroad company to furnish its employees a safe place to work, and to exercise reasonable care not to associate him with incompetent co-workers. Howd. v. M. C. R. R. Co., 50 Miss. 178; Memphis R. R. Co. v. Thomas, 51 Miss. 637. But there is no evidence that the place where plaintiff worked was unsafe or that the fireman whose negligence caused the injury, was incompetent.

The charge of the court given at the request of the plaintiff, as applied to the Louisville & Nashville Railroad Company is in direct conflict with the law as stated in the foregoing authorities, and declares that the railroad company was liable for the negligence of the servant of the Callahan Construction Company. This was erroneous as a statement of the law, either under the common law or under the statute. Under the common law, the employer is not liable to an employee for the negligence of a co-servant in the same employment, and under the statute the employer is made responsible to one employee only for the negligence of another employee of the same master.

It follows that the charge given for the plaintiff was erroneous in so far as it authorized a verdict against the Louisville & Nashville Company.

If the fireman was employed by the Callahan Construction Company, as hypothecated by the charge, then that company was liable to the plaintiff for the negligence of the fireman, whether plaintiff was in the employment of the construction company or not. If the plaintiff and the fireman were both employed by the Callahan Construction Company, the liability arose out of the statute; while if the plaintiff was not in the employ of the Callahan Construction Company, then that company was liable to him under the common law for the negligence of its servant, but the undisputed evidence was that the fireman was not in the employment of the Louisville & Nashville Railroad Company, and as the railroad company could not be liable for his negligence unless he was in its employ, the court erred in not giving on behalf of the Louisville & Nashville Railroad Company, the affirmative charge.

Rushing & Guice, for appellants.

The inquiry in this case is whether King & Clark were independent contractors or servants of the appellant. We quote the following authorities in support of our contention that King & Clark were independent contractors.

"A railroad company may contract for the construction of its road by another person, without retaining any control over the manner of doing the work, or may make such contract with regard to repairs on its road; (and, in case of injuries occurring from the negligence or misconduct of a contractor or his employees, or during his control of the road the liability of the railroad company, as in the case of natural persons, depends upon whether the contractor was the agent or employee of the company, or was an independent contractor). 33 Cyc. 698 (and this question is determined primarily by whether the railroad company had the right to control the manner of doing the work. Rome et al. Ry Co., v. Chasteen, 88 Ala. 7 So. 99; Cunningham v. International Ry. Co., 51 Texas 503, 32 Am. Rep. 632; Bibb v. Norfolk Ry. Co., 87 Va. 711, 1455 E. 163.); or in possession or control of the road or the operation of the train thereon at the time and place of injury . . . If the contractor for the construction is an independent contractor, the company will not be liable for his negligence or wrongful acts. See 41 Century Digest, title Railroads 793-798" City etc. Rys. Co. v. Morres, 80 Md. 348, 30 Atlantic 645; 45 Am. St. Report 345; Mayor etc., v. McCary, 84 Ala. 469, 4 So. 630; Myer v. Hobbs, 57 Ala. 75; Cunningham v. Railroad Co., 51 Tex. 503; Railway Co. v. Fitzsimmons, 18 Kan. 34; Hughes v. Railway Co., 39 Ohio St. 461; 1 Shear. & R. Neg. pp. 158; Railroad Co., 71 Mo. 303; 2 Amer. Dig., p. 1738; L. & N. Ry. Co. v. Cheatham, 100 S.W. 902, 118, Tenn. 160; Good v. Johnson, 88 Miss. 439; 7 Amer. Dig. 1907A., p. 3364-65; Good v. Johnson, 88 P. 439; 8 Amer. Dig. (N. C., 1909), p. 1830; Smith v. South & W. R. Co., 66 S.E. 435, 151 N.C. 479; 4 Amer. Dig. (La. 1908), p. 2015; Cole v. La. Gas Co; 146 So. 801, 121 La. 771; Ford v. Same, Id.; 7 Amer. Dig. (N. Y. Sup. 1909), p. 1826; L. & N. Ry. Co. v. Smith, Adm., 119 S.W. 291; 6 Amer. Dig., (W. Va. 1908,) page 1626; Vickers v. Kanawha & W. V. R. Co., 63 S.E. 367, 20 L. R. A. (N. S.) 793; Hooe v. Boston & N. St. Rys. Co., 73 N.E. 341; Boyd v. Ry. Co., 75 N.E. 496.

It is insisted that the case of Finkbine Lumber Co. v. Cunningham, 57 So. 916, is authority for the proposition that the subcontractors herein were servants and not independent contractors. The facts in the two cases are radically different. In the case at bar, the appellant had no connection as servants with the railroad company, being contractors engaged in this line of work and executing a contract to cover every detail of the work. The firm of King & Clark were not employees of the appellant, but did their work under contract, setting out in detail what they were to do and renting such equipment as was necessary for them to use in performing their agreement. There is no testimony to show that any employee of the appellant exercised supervision over the work.

In conclusion we quote the opinion of Justice CAMPBELL, in ...