Edward Hines Lumber Co. v. Harriel
| Decision Date | 17 December 1934 |
| Docket Number | 31423 |
| Citation | 171 Miss. 670,158 So. 146 |
| Court | Mississippi Supreme Court |
| Parties | EDWARD HINES LUMBER CO. v. HARRIEL |
1. MASTER AND SERVANT.
In personal injury action against employer by one allegedly employed to operate drum on skidder used for purpose of drawing logs from woods to employer's logging tracks whether plaintiff was in employ of defendant at time of injujry held for jury.
2. MASTER AND SERVANT.
Where lumber company's injured employee was employed on skidder, under supervision of skidder foreman, as drum operator for purpose of drawing logs from woods to employer's logging tracks, employee held not "engineer in charge," within statute providing that injured employee's knowledge of defective or unsafe condition of machinery or appliances shall not be defense to action caused thereby, except as to conductors or "engineers" in charge of unsafe cars or engines voluntarily operated by them (Code 1930, section 6154; Constitution 1890, section 193).
3. MASTER AND SERVANT.
Where injured employee of lumber company was employed, under supervision of skidder foreman, as drum operator on skidder and drums were operated by stationary steam engine on the skidder which was located on tracks and could be moved from place to place, employee held within statute abolishing fellow-servant rule as to employee of railroad or other corporation using engines or cars propelled by steam or lever power and running on tracks (Code 1930, section 6154).
APPEAL from the circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.
Suit by Nathan Harriel against the Edward Hines Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
T. J. Wills, of Hattiesburg, and T. W. Davis, of Purvis, for appellant.
This court held that section 193 of the Constitution of 1890, had no application to employees of railroads other than those railroads proper which carry freight and passengers and, therefore, excluded logging railroads and mining railroads and such other railroads as might be operated other than common carriers.
Givens v. Southern Railroad Co., 94 Miss. 830, 49 So. 180; Myers v. Lamb-Fish Lumber Co., 106 Miss. 766, 64 So. 727.
We admit, for the sake of argument here, that this court had approached very closely to the point of holding that a skidder so operated, and the employees thereon, are within the protection of the constitution and statute. The court, however, has not so held and we think that the cases construing the statute are easily distinguishable from the case at bar.
Hunter v. Ingram-Day Lbr. Co., 110 Miss. 744, 70 So. 901; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104.
In the case at bar the skidder was anchored to stumps and the track. It did not move by its own power and the pulling in of the logs was not a preparation for their immediate transportation. The skidder is not a loader and the logs could not be loaded on the cars for transportation with the skidder. The fact that it was moved from place to place on the railroad track was a matter of convenience. Great numbers of skidders are now being moved over the ground and from place to place on caterpillar or crawler tractors.
The case at bar is easily distinguishable from the Hunter case because the very operation that Hunter was engaged in when he received his injury is a necessary operation between the operation of the skidder in the case at bar and the transportation of the logs on the railroad trains. It is easily distinguishable from the New Deemer case.
If the Constitution and statutes do not apply so as to bar him from a recovery on the theory that he was an engineer voluntarily engaged in the operation of a defective machine, then he cannot recover for the reason that the injury was inflicted by the negligence of a fellow servant, and the negligence of a fellow servant in all cases not covered by the Constitution and statute is a bar to a recovery.
Gex & Gex, of Bay St. Louis, and J. M. Morse, of Poplarville, for appellee.
It could not be sincerely claimed that the word "engineer" can be applied to the engineer who locates tracks and does engineering work of that kind, or who runs some little stationary pumping engine, or to any one of many other persons connected with railroad service that might properly be called "engineers."
Railroad Co. v. Parker, 88. Miss. 197, 40 So. 747; Hartford v. Northern Pacific R. Co., 91 Wis. 374, 64 N.W. 1033.
Appellee herein does not fall within the class of persons referred to in the statute as engineers.
Where the plaintiff was acting under the orders of his superior who had a right to control his services, the master was liable for injuries to plaintiff resulting from defective machinery or appliances, voluntarily operated by him with knowledge of such defects.
St. Louis & S. F. R. Co. v. Guin, 107 Miss. 187.
Since the enactment of the statute as it appears at section 6154, Code of 1930, this court has uniformly held that any employee engaged in any work, having for its object and purpose the loading of cars, or the movement of trains, engines, or cars along railroad tracks, as in the present case, is protected by the statute.
Hunter v. Ingram Day Lbr. Co., 110 Miss. 744, 70 So. 901; Newman Lbr. Co. v. Irving, 118 Miss. 59, 79 So. 2; Ellis v. Bear Creek Mill Co., 117 Miss. 742, 78 So. 706; New Deemer Mfg. Co. v. Alexander, 85 So. 104, 122 Miss. 859.
The appellee, Nathan Harriel, was plaintiff in the court below and brought suit against the appellant for personal injuries, and recovered a judgment for one thousand dollars, from which this appeal is prosecuted.
The declaration alleged that the appellant was engaged in the sawmill business and used a skidder on which the appellee was employed to work, under the supervision of the skidder foreman, as drum operator, for the purpose of drawing logs from the woods to the appellant's private logging tracks the appellant having a private logging railroad line to carry logs to its mill. It was alleged that the appellee was employed to operate a drum on which the lines, after having been hitched to the logs in the woods, wound around in bringing the logs in from the woods to the track. The particular skidder involved in this case had two booms in each of which was operated two lines, so that there were four lines. The drums on the skidder were operated by a stationary steam engine located on the skidder, which was located upon the tracks and could be moved from place to place. The steam power was applied by a long iron shaft with a handle thereon to, be manipulated by each man operating the drum. The steam was turned on by turning this shaft with the handle by the employee operating the drums which were controlled by a friction lever so that they could be made to run slow or fast, or could be stopped by removing the friction. It was further alleged that the friction lever was an old homemade one and was built in such manner that the person, whose duty it was to operate the drums, had...
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