Dantzler Shipbuilding & Dry Docks Co. v. Hurley

• Citation: 119 Miss. 473,81 So. 163
• Decision Date: 31 March 1919
• Docket Number: 20581
• Parties: DANTZLER SHIPBUILDING & DRY DOCKS CO. v. HURLEY ET AL
• Court: United States State Supreme Court of Mississippi

81 So. 163

119 Miss. 473

DANTZLER SHIPBUILDING & DRY DOCKS CO. v. HURLEY ET AL

No. 20581

Supreme Court of Mississippi

March 31, 1919

[81 So 163, In Banc.]

1 CARRIERS. Carriage of passengers by automobile truck. Breach of contract.

An employer who conveyed his employees to and from their homes in an automobile truck for a small stipend, did not breach his contract of carriage by stopping his truck a few yards beyond his employee's gates instead of directly opposite where no inpediments or inconvenience were in the way of his getting into his home from where the truck was stopped.

2 SAME.

In such case the employer was not liable for the death of an employee, who jumped from the moving truck when the truck driver failed to stop his truck directly opposite the employee's gate. In such case the efficient and proximate cause of the injury causing death was the voluntary act of the employee in jumping from the truck and not the negligence of the driver.

3 SAME.

In such case the fact that the driver of the truck stopped a few yards beyond the employee's gate was not negligent, although his custom was to stop in front of the gate.

HON. J. H. NEVILLE, Judge.

APPEAL from the circuit court of Jackson county, HON. J. H. NEVILLE, Judge.

Suit by Mrs. J. W. Hurley and others against the Dantzler Shipbuilding & Dry Docks Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause dismissed.

White & Ford, for appellant.

It will be noted at the outset that liability against appellant in this case was predicated on the relation of carrier and passenger which it was alleged existed between appellant and deceased Hurley. The declaration did aver that Hurley was employed by appellant, and the relation of master and servant existed between them on the date when deceased was killed, but it was charged that at the time he was hurt, deceased was a passenger being transported for hire by appellant. If therefore the proof fails to show that the relation of carrier and passenger existed at the time Mr. Hurley was run over, there cannot be a recovery in this case in any view of it.

Legal status of employee while transported to and from places of work by employer without remuneration. See case of Bowles v. Indiana Ry. Co., 87 Amer. State Reports, 279; Ionnone v. N.Y. Cen. R. R. Co., 79 Amer. State Reports, 812; L. & N. R. R. Co. v. Stuber, 54 L. R. A. (Old Series), page 696; McGuirk v. Shattuck, 30 Amer. State Reports, page 454; Vick v. N.Y. Cen. R. R. Co., 47 Amer. State Reports, page 36; Toledo & W. Railway Co. v. Durkin, 76 Ill. 395; Abend v. Terre Haute & I. Railway Co., 111 Ill. 202; 53 Amer. State Rep. 616; Seaver v. Boston & M. Railway Co., 14 Gray 466. We do not find that Mississippi courts have decided this point squarely. A multitude of authority from other states might be cited, but we think the foregoing sufficient.

Under numerous decisions of this court, Hurley was clearly the fellow-servant of the driver, John Seymour. Both were employed by the same master in the general business of building ships. Similar questions have been before this court heretofore, and many authorities might be cited but we will content ourselves with the following:

See McMaster v. R. R. Co., 65 Miss. 264, holding that a conductor of one train is the fellow-servant of the employees of another train of the same company, and that the railroad company is not liable for the death of a brakesman of a freight train caused by the negligence of the conductor and other employees on a passenger train. See also N. O., etc., R. R. Co. v. Hughes, 49 Miss. 258; Memphis, etc., R. R. Co. v. Petty, 67 Miss. 255; Lagrone v. R. R. Co., 67 Miss. 592; Millsaps v. R. R. Co., 69 Miss. 423; Ill. Cen. R. R. Co. v. Jones, 16 So. 300; I. C. R. R. Co. v. Bishop, 76 Miss. 810; Bradford Construction Co. v. Heflin, 88, Miss. 314.

The courts have often had occasion to pass on a carrier's liability for injuries sustained by a passenger in jumping off and on moving trains. They all hold that the passenger in so doing is negligent. Referring to decisions from our own state, we find the case of Bardwell v. M. & O. R. R. Co., 63 Miss. 574.

In that case, plaintiff leaped from a train moving from six to twelve miles per hour, the conductor having slowed down the train at plaintiff's stop, so that he could jump off. The court held there could be no recovery. In this case, the driver, Seymour, did not know that Hurley was going to jump, until he had fallen under the wheels. See also case of Collins v. Southern R. Company, 89 Miss. 375. See also M. & O. R. R. Co. v. Statha, 42 Miss. 607.

So then, we submit, there could be no liability in this case, even if Hurley had been a passenger, which he was not.

We do not see how the driver could have averted this unfortunate accident. He was not running rapidly, nor recklessly and did not know of Hurley's peril until the wheel struck him. Hurley had evidently jumped clear of the truck, but according to a statement made by witness Brondum, stumbled against some one's heel as he alighted, causing him to fall backward. We cannot say that Hurley would not have jumped off any how, whether the truck stopped or not. But we have it from the driver, uncontradicted, that he was bringing the truck to a stop when the accident occurred. Probably Hurley would not have been hurt, if he had not stumbled on the other man's heel. Certainly appellant was not responsible for that.

Mize & Mize and S. C. Broom, for appellees.

In the threshold of this case lie the following legal propositions: Was Hurley a passenger of appellant; did the relation of passenger and carrier exist between Hurley and appellant at the time he was hurt? Or did the relation of servant and master exist between Hurley and appellant at the time of the injury?

We submit, emphatically, that the relation of master and servant did not exist while Hurley was being conveyed by said truck to his living place, as we will show hereinafter, and plant ourselves squarely on the first proposition above, to wit: that the relation of passenger and carrier only existed between appellant and said Hurley at said time.

Our analysis of the facts from the evidence is this: That Hurley paid the agent of appellant, the driver of the truck, twenty cents per week for his transportation, which was independent of his contract with appellant to work for sixty-five cents per hour and that this was done at the instance and with full knowledge of the appellant and, under these facts Hurley was a passenger.

Or, if mistaken in this, our contention is that appellant had a general rule to provide its employees with transportation, by means of this truck operated by its own servant and under its control, to and from a fixed place of work in which event he was a passenger.

There can be no dispute but what all the authorities hold that a person who is travelling with another, paying compensation may be, or in whatever amount, for his carriage, is a passenger. Elliot on Railroads, sec. 1578.

In the instant case, Hurley paid the appellant twenty cents per week for his transportation i. e., he paid appellant's agent and driver of the truck, the twenty cents; hence, he was a passenger of appellant.

But, should we be mistaken in this, then we submit that it cannot be successfully disputed that the company had a general rule, as disclosed by the record, to provide its employees with transportation by means of this truck operated by its servant and under its control, to and from a fixed place of work.

There is some authority to the contrary, but the Court will find that they are hopelessly in the minority or are cases in which an analysis will show that a different state of facts exist from those disclosed in the instant case. Without criticising any of the courts holding contrary to our view, will say that most of them have overlooked this point; that is, in cases that state the doctrine contrary to our contention most of them are on facts where the servant is employed concerning duties that call him to different places of business, and, while going to and from these places by transportation furnished by the employer, he is injured, and are not cases where servants are engaged at a fixed place of work and have completed their work for the day, quit this fixed place of work, and are being transported home by conveyance of the appellant under its rule and custom, as in the instant case, under which facts the servant is no longer in the employment of the master until he actually begins work again.

The great weight of authority is, and we think properly so, that the servant is not a passenger where the facts are such that he has more than one place to work for the master and is being transported free by the master between such places.

The case of R. R. v. Stuber, 54 L. R. A. (Old Series), 696, cited by appellant, p. 6, of its brief, is a case where a foreman of water supply of a railroad is carried from place to place where some machinery is to be repaired; held by the court to be a fellow servant, and properly so; because he is hurt while riding between his place to work and is on duty and under the authority of the master. The case of McGuirk v. Shattuck, 30 Am. St. Rep. 454, cited by appellant, and cited by Thompson on Negligence, is a case where a servant was sent for by her master and carried by another servant to her place of work. The very moment the other servant took charge of her, she became a fellow servant and under the authority of the master, and the court correctly so held.

The case of Toledo, etc., Ry. v. Durkin, 76 Ill. 395 cited by appellant, p. 7, of brief, is a case of a laborer on a gravel train...