Capital City Oil Works v. Black

• Citation: 70 Miss. 8,12 So. 26
• Court: United States State Supreme Court of Mississippi
• Decision Date: 21 November 1892
• Parties: CAPITAL CITY OIL WORKS v. ARMISTEAD BLACK

12 So. 26

70 Miss. 8

CAPITAL CITY OIL WORKS v. ARMISTEAD BLACK

Supreme Court of Mississippi

November 21, 1892

October 1892

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

Action of damages by appellee against the appellant, an oil company. Plaintiff was employed as a laborer to shovel. cotton-seed in the yard of appellant, in Jackson, Mississippi. While he was working in the yard with other laborers it became necessary to move a loaded car from the yard, and to have it coupled to another car which was standing on a sidetrack. The president of the company was present giving directions, and about the time the car started he called to the laborers present saying, that if any of them understood coupling to go ahead and couple this car to the other. Plaintiff, who had some experience in handling cars, responded, and, as he started the president urged him to hurry up, at the same time directing another employe, a boy, to apply the brake to this car, which was going down grade. Plaintiff supposed the speed of the car would be controlled, and ran forward without looking back, but the brake was not applied, and, just as he reached the other car, and put his hand on the link to make the coupling, the moving car came against it with force, and his hand was caught and badly injured. He was disabled from doing the regular work for which he had been employed, but the next morning after the accident he returned to the mill of appellant, and was put at light work, which he followed about two weeks, when he went to work regularly as before. He remained in the employ of the company for about twelve months, when he was discharged, after which he brought this action. On the trial the above facts, substantially, were shown. Defendant asked a peremptory instruction in its favor which was refused, and plaintiff had a recovery for $ 350, hence this appeal.

Reversed and remanded for new trial.

Miller, Smith & Hirsh, for appellant.

1. Appellee was merely requested to couple the car, and was not commanded to do so. Hence his effort to make the coupling was purely voluntary, and he cannot recover. 2 Thomp. on Neg., p. 1017, § 21.

2. But if the president's language can be construed as an order or command, plaintiff was not entitled to recover, and the peremptory instruction should have been given. It is no excuse that plaintiff was hurried. Taylor v. Carew Mfg. Co., 140 Mass. 150; 14 Am. & Eng. Enc. L., 859, 862. His opportunities for observing the danger were equal to that of the employer; indeed, they were more ample. See English v. Railroad Co., 24 F. 906; 2 Thomp. on Neg., § 7; Warnell v. Railroad Co., 31 Am. & Eng. R. R. Cas., 272; Atlas Engine Wks. v. Randall, 100 Ind. 293 s.c. 50 Am. R., 798.

Calhoon & Green for appellee.

Where the master orders the servant into danger, or in a service other than that for which he was employed, his obedience will not be negligence, and in case he is injured in such an undertaking, the master is liable. Beach on Con. Neg., § 132. In such case,...