Ellis v. Bear Creek Mill Co

• Decision Date: 27 May 1918
• Court: Mississippi Supreme Court
• Parties: ELLIS v. BEAR CREEK MILL CO

78 So. 706

117 Miss. 742

ELLIS v. BEAR CREEK MILL CO

Supreme Court of Mississippi

May 27, 1918

March 1918

Division A

APPEAL from the circuit court of Green county, HON. R. W HEIDELBURG, Judge.

Suit by Jesse Ellis against the Bear Creek Mill Company. From a judgment for defendant, plaintiff appeals.

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

Judgment reversed and case remanded.

Stevens & Cook, for appellant.

As will be easily perceived from an examination of the record, the basis of appellee's motion for a peremptory instruction and of the action of the court in sustaining the motion is that Box was a fellow-servant of appellant, Ellis, and that Box was not engaged in the performance of any duty pertaining to the actual loading of the car; that the injury was solely caused by Box's negligent act in releasing the log from the wagon; that Ellis is not protected by chapter 194 of the Laws of 1908 giving railroad employees the same rights and remedies for injuries caused by an act or omission of the railroad company or its employees as are allowed by law to other persons not employed. The court held that Box was simply the driver of a team of appellee and that his act in bringing up a load of logs and placing the loaded wagon at the landing and his releasing the chain from around the logs had no direct connection with the loading of the log car, and that therefore his negligence in releasing the load was not in connection with any operation of the logging train or of any duty connected with the loading of the train; that therefore Ellis, being his fellow servant is not entitled to recover of the appellee, the master, on account of such negligence. The lower court, in other words adopted the view that to enable Ellis to recover, the negligence of his fellow servant, Box, must have been in connection with the actual loading of the logging car, that the act of Box in placing the load in close proximity to where appellant was tonging and in releasing the chain from around the logs was disassociated and disconnected from the loading operations.

The first question, therefore, which we desire to discuss is whether or not at the time Box was guilty of the negligent conduct complained of he was in reality performing a part in the loading of the car of logs. We confidently lay down the proposition that he was so contributing; that he was in effect at that moment a part of the loading crew and performing a necessary duty in and about the loading of the car of logs. If this is true, then, according to appellee's own admission, the appellee company is responsible to appellant in damages for appellant's injuries.

He was not employed simply to bring logs from the woods, but in addition to this he was employed and under the duty to place his load of logs alongside the tongs in convenient places to be tonged and to so unfasten the logs as that they might be lifted from his wagon by the derrick and tongs. It was in the performance of the latter duty that Box was negligent and this duty was directly connected with the loading operations. This court has held in the case of Hunter v. Ingram Day Lumber Company, 110 Miss 744, that an employee engaged in tonging logs for a steam loader, like the one in use by appellee, comes within the class of employees protected by chapter 194, Laws of 1908. We regard the latter case as decisive of the instant case. Under the facts in the instant case there can be no serious question that Box was a fellow-servant of appellant and engaged at the time of the injury about the same department of work, to wit, the loading of logs into a logging car. This being the case appellant comes within the exception of the statutes and is protected from the rigors of the common-law fellow-servant rule.

But whether or not it is true that Box was performing a duty in connection with the actual loading of the car when he committed the negligent act complained of, we submit that appellee company is liable in damages to appellant nevertheless. It is undisputed that appellant belonged to that class of employees excepted in the fellow-servant doctrine by the statute, being engaged as he was in and about the operation of the loader and train of cars. In the course of the performance of his duties he is injured by the act of a fellow servant engaged in the performance of a duty that brought him in close contact with appellant and which duty was a necessary one in the course of appellee's logging operations and which had a direct connection with the very operations in which appellant and his crew were engaged. Box's act was entirely disassociated from the very duties that appellant was performing, but were done and performed in the furtherance of the master's business in the same identical department and line of work in which appellant was engaged. The doing of the things which Box doing constituted a part of the dangers incident to the loading of cars by steam power and to the dangers of railroading. At the very moment appellant was hurt his entire attention was necessarily riveted upon the log which he was tonging and the engineer who was directing and commanding his services, and was under the necessity of watching the log and the dangerous cables and derrick not only to see that his duty had been performed correctly but also to avoid danger to himself from the swinging of the log which he had tonged. Both he and Box and their several duties were necessary and essential in the transportation of the logs and in the operation of the logging train. The purpose of the statute, as said by Chief Justice WHITFIELD in the case of Ballard v. Oil Company, 81 Miss. 565, "Was to give its benefit to employees engaged in the hazardous business of operating railroads."

And these benefits have been extended since Justice WHITFIELD'S announcement, to the employees of "all other corporations and individuals using engines, locomotives or cars of any kind, or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks. " Appellant was certainly injured on account of a hazard incident to loading by means of the steam loader, and comes within the provisions of the statute. The construction put upon the statute in the instant case by counsel for appellee and adopted by the learned Judge below, is entirely too narrow, technical and strained. The statute provides that an employee engaged in the hazardous occupations mentioned "shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation, or others, or their employees, as are allowed by law to other persons not employed."

If it should be argued that Box was not engaged in loading or assisting to load the car in question, and that his duties were not directly connected with the loading of the car, then it would follow that he was engaged in a separate department of work but connected with the general operation of the logging railway, and his negligence in the performance of his duty in this separate department of work would render the appellee company liable under section 193 of the Constitution of Mississippi. In other words, if Box and appellant were fellow-servants but engaged in separate departments of work, appellee would be liable to appellant for the negligence of Box.

The statute undertakes to classify the employees injured and to relieve them from the hardships of the old fellow-servant rule rather than to classify the persons committing the act of negligence that caused the injury. Whether Box in the present case was engaged or not in loading the car certainly appellant was so engaged, and the classification of the statute undoubtedly covers appellant. The injury was caused by one of the hazards of the very business in which this fellow employee was working. It was caused by the negligence, admittedly of a fellow employee. Therefore appellant is protected by the beneficent provisions of the statute abolishing the fellow-servant rule as to employees in his class.

In connection with the contentions hereinbefore made, we refer to the cases of Hunter v. Ingram-Day Lumber Co., 110 Miss. 744; Lockman v. Alabama & V. Ry. Co., 77 So. 793, Advance Sheets Southern Reporter of March 16, 1918; Railroad Co. v. Pontius, 157 U.S. 209, 15 S.Ct. 585, 39 L.Ed. 675.

Upon the proposition that the classification intended to be made by Laws of 1908, chapter 194, amending Code 1906, section 4056, so as to abolish the fellow-servant rule in actions for injuries to employees of railroads, etc., embraces within its scope appellant, we cite the case of Easterling Lumber Company v. Pierce, 106 Miss. 572, 64 So. 461.

For another case of injury to a railway employee injured while helping to load a car by the negligence of the fellow servant, see Lockman v. Alabama & V. Ry. Co., 77 So. 793, Advance Sheets March 16, 1918.

The case of Illinois Central R. R. Co. v. Ford, et al., 108 Miss. 616, 67 So. 146, holding that section 4043, Code 1906, prohibiting the running of locomotives and cars through cities, etc., at a rate of speed in excess of six miles an hour, is applicable where the party injured was an employee of the railroad company and working on its tracks is in point upon the proposition that appellant in the instant case comes within the protection of the Law of 1908, chapter 194.

The action of the lower court in directing a verdict for the defendant was erroneous manifestly for another very sufficient reason, namely, that it is charged in the declaration that appellant was not furnished a safe place in which to do his work. Edwards v. Haynes-Walker Lumber Co., decided March 5, 1917, and reported at 74 So. 284.

But if it be answered by counsel for app...