Favre v. Louisville & N. R. Co

• Decision Date: 24 January 1938
• Docket Number: 32973
• Parties: FAVRE v. LOUISVILLE & N. R. Co
• Court: Mississippi Supreme Court

178 So. 327

180 Miss. 843

FAVRE v. LOUISVILLE & N. R. Co

No. 32973

Supreme Court of Mississippi

January 24, 1938

Division B

Suggestion Of Error Overruled, February 21, 1938.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Action by A. G. Favre, administrator of the estate of J. R. Still, deceased, against the Louisville & Nashville Railroad Company to recover for the wrongful death of deceased under the Federal Employers' Liability Act. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Gex & Gex, of Bay St. Louis, Brunini & Hirsch and W. W. Ramsey, all of Vicksburg, and Bidwell Adam, of Gulfport, for appellant.

By Section 495, it is provided that where a citizen resident in this state shall be sued in any county other than the county of his residence, the cause may be removed to the county of his residence upon motion. Under this section, this court has repeatedly held that the provisions thereof were not applicable to corporations, either domestic or foreign.

Morrimac Veneer Co. v. McCalip, 129 Miss. 671; Plummer-Lewis v. Francher, 111 Miss. 656.

As to Section 500, which permits changes of venue under proper proceedings, on the ground of prejudice existing as to either of the parties, this court has not as yet passed upon the question as to whether corporations may avail themselves of the provisions of that statute. Assuming, but not conceding that corporations may take advantage of the provisions of Section 506, and obtain a transfer of a cause to another county on the ground of prejudice, we submit that the defendant wholly failed to comply with any one of the provisions of the statute by which it attempted to obtain a change of venue.

Wilson v. Rodewald, 49 Miss. 506.

The statute provides that the petition must be under oath, and no proper oath is appended to the motion.

Griffith's Chancery Practice, sec. 189, page 186; Holmes v. Lemon, 15 So. 141; Jacks v. Bridewell, 51 Miss. 881: Waller v. Shannon, 53 Miss. 500; Stewart v. Coleman & Co. 81 So. 653: Burks v. Burks. 66 Miss. 494.

The court will note that in the cases above cited the purported affidavit was in much stronger terms than that appended to the motion fro change of venue in the instant case. In those cases, the affidavit was made by the agent or attorney upon his information and belief, while the affidavit in the present; case is that the attorney making the affidavit is "of the opinion" that the facts are true. Even if the affidavit had been made by the attorney in strict conformity with the law, when it was met by a denial of the facts alleged in the motion, under the oath of the plaintiff, as was done in this case, the motion could not have been sustained without evidence thereon, for two reasons: first, because of the rule of law as set out in Griffith's Chancery Practice, supported by the decisions above cited; and second, because of the mandatory provisions of the statute, which require evidence in support of such a motion.

We submit, however, that the purported affidavit to the motion was so completely lacking in its essential allegations as to the truth of the facts set out in the motion, that the paper filed by the defendant was in effect, an unsworn motion, and since Section 500 provides mandatorily for such a motion to be filed under oath, it should not have been considered at all.

It is true that in the matter of granting continuances the court is vested with considerable discretion, but where prejudice to one of the parties results from a failure to grant a continuance, it is this court's duty to reverse for that error alone.

Bedford v. Gartrell, 36 So. 529.

It was a question for the jury to say whether or not the railroad company was negligent in failing to provide a reasonably safe place for deceased, J. R. Still, to work. Under the Federal Employees Liability Act, Section 51, Chapter 45, U. S. Code, provides that the railroad shall be liable for such injury and death resulting in whole or in part from its negligence, or by reason of any defects or insufficiency due to its negligence, in its engine, cars, appliances, machinery, roadbed, works, boats, wharfs, or other equipment. We respectfully insist that the failure of the railroad company to maintain the cattle gap a sufficient distance from the side of the car to clear a man, in accordance with the custom and practice of other railroads, and in accordance with their own plans and blueprints, was a question of fact the jury should have passed on.

Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Lowe v. M. & O. R. Co., 149 Miss. 889, 116 So. 601; Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858.

The United States Supreme Court recently held, in the case of Jamison v. Encarnacion, 281 U.S. (635, 74 L.Ed. 1082, that the Federal Employees Liability Act should be liberally construed to protect the largest number of men in hazardous employment.

It has been generally held by the Supreme Court of the United States, by the inferior federal courts, and by the supreme courts of practically every state in the Union, in cases where employees have been knocked from the top of, and from the side of cars by water spouts, water pipes, scale boxes, coal chutes, low bridges, projections, telegraph poles, mail crane platforms, cattle gaps, cattle chutes and fences, posts, switch stands, sign limit boards, limbs from trees and cars too near the track, that the railroad company is liable for such injuries.

Wilson v. N. V., N. H. & H. R. Co., 69 A. 364; T. & P. Ry. v Swearingen, 196 U.S. 51, 49 L.Ed. 382; C. O. & G. R. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; P. & R. R. Co. v. Marland, 239 F. 1; Bryce v. C. M. & St. P. Ry., 72 N.W. 780; Hughes v. Louisville & N. R. Co., 48 S.W. 671; Reading Co. v. Geary, 47 F.2d 142; L. R. & Ft. S. Ry. Co. v. Voss, 18 S.W. 172; Georgia Pac. Ry. v. Davis, 9 So. 252; Whipple v. N. Y., N. H. & H. R. Co., 35 A. 305; illinois Terminal R. Co. v. Thompson, 71 N.E. 328; Pikesville R. & E. G. R. R. v. State, 42 A. 214; Withee v. Somerset Traction Co., 56 A. 204; L. & I. R. R. v. Hardin, 157 W. 15; Hoffmeier v. K. C., L. Railroad, 75 P. 1117; Scanlon v. B. & A. Railroad, 18 N.E. 209; Washington R. R. v. Scala, 244 U.S. 630, 61 L.Ed. 1360; Murphy v. Wabash R. CO., 21 S.W. 862; Atchison, T. & S. F. Ry. Co. v. Tack, 130 S.W. 596; Northern Ala. Ry. Co. v. Mansell, 36 So. 459; Fredenburg v. Northern Cent. Ry. Co., 21 N.E. 1049; Wood v. Louisville & N. R. Co., 88 F. 44; Curran v. Union Stockyards Co., 196 N.W. 135; Keist v. Chicago G. W. Ry., 81 N.W. 181; McAfee v. Odgen Union Ry. & Depot Co., 218 P. 98; Westover v. Wabash Ry. Co., 6 S.W.2d 843; Bonner v. LaNoue, I5 S.W. 803; Morrisette v. C. P. Ry. Co., 52 A. 520; Emch v. Pennsylvania R. Co., 37 F.2d 828; Johnston v. O. S. L. & U. N. Ry., 31 P. 283; Boss v. Northern Pacific R. R. Co., 40 N.W. 590.

On the question as to the plaintiff's knowledge of the risk involved it is proper for the court and jury to take into consideration whether or not the engine and cars on which the plaintiff was riding or working at the time of the accident was of the usual size, height and width, or whether or not there was an unusual condition that he did not know and appreciate at the time of the accident.

Guana v. Southern Pac. Co., 139 P. 782; Birmingham Belt R. Co. v. Bennett, 146 So. 265; Davis v. Crane, 12 F.2d 355; Northern Pac. v. Mortenson, 63 F. 530; Erslew v. N. O. & N. E. R. Co., 21 So. 153; C. O. & G. R. R. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; Wood v. L. & N. R. Co., 88 F. 44; Sanderson v. B. & M. Railroad, 101 A. 40; N. Y., C. & St. L. R. R. Co. v. Boulden, 63 F.2d 917; Devine v. Delano, 111 N.E. 742, Ann. Cas. 1918A 689; Kearns v. C. M. & St. P. Ry., 24 N.W. 231; Central Trust Co. v. Tennessee V. & G. Railroad Co., 73 F. 660; New York C. & St. L. R. Co. v. Peele, 164 N.E. 705, 49 S.Ct. 263; Wright v. Y. & M. V. R. R. Co., 197 F. 94; Derrington v. Southern Ry. Co., 40 S.W.2d 1069; Chesapeake & O. Ry. Co. v. Shamblen, 179 S.W. 837; Youngstown & O. R. R. Co. v. Halverstodt, 12 F.2d 995; Rapid Transit Ry. Co. v. Edwards, 118 S.W. 838; Reardon v. D. L. & W. R. Co., 147 A. 544; St. L. & S. Ry. v. Holt, 121 S.W. 581: Davis v. Scroggins, 284 F. 760; Dwyer v. St. L. & S. F. R. Co., 52 F. 87; Louisville & N. R. Co. v. Parker, 138 So. 231; Norfolk & Western Ry. Co. v. Beckett, 163 F. 479; Westover v. Wabash R. R., 6 S.W.2d 843; Bruce Co. v. Leake, 3 S.W.2d 988; Gila Valley R. R. Co. v. Hall, 232 U.S. 94, 58 L. Ed, 521; G. C. & S. F. Ry. v. Darby, 67 S.W. 446.

In the instant case, defendant made much of the fact that the Railroad Company had adopted certain rules relative to clearances and notices of cattle gaps that did not clear a man on the side of cars in the discharge of his duties.

Plaintiff objected to this testimony on the ground that Section 55, Chapter 45, U. S. Code provides that no com- mon carrier can exempt itself by rules from its duty to furnish a reasonably safe place for its employees to work.

McIntyre & St. L. & S. F. Railroad, 227 S.W. 1047; S. P., L. A. & S. L. R. Co. v. Brown, 258 F. 806; Devine Cas. v. Delano, 111 N.E. 742, Ann. 1918A 689; Wilson v. N. Y., N. H. & H. R. Co., 69 A. 364; 18 R. C. L. 610, sec. 107; 39 C. J., Page 397, sec. 515, and page 777, sec. 977.

The question of the right to the appointment of an administrator, cannot bo raised in this court because it is a collateral attack upon that judgment. Cook v. Abernathy, 77 Miss.

It was held in the case of 873, by this court, that the granting of letters of administration of the deceased estate was prima facie proof that he was dead. It has been numerously held in cases in Mississippi that the appointment of an administrator is prima facie proof that the...