Givens v. Southern Railway Co.

• Decision Date: 26 April 1909
• Docket Number: 13,784
• Citation: 94 Miss. 830,49 So. 180
• Court: Mississippi Supreme Court
• Parties: WILLIS GIVENS v. SOUTHERN RAILWAY COMPANY

49 So. 180

94 Miss. 830

WILLIS GIVENS v. SOUTHERN RAILWAY COMPANY

No. 13,784

Supreme Court of Mississippi

April 26, 1909

FROM the circuit court of Sunflower county, HON. SYDNEY SMITH Judge.

Givens the appellant, was plaintiff in the court below and the railroad company, appellee, was defendant there. From a judgment in favor of the defendant plaintiff appealed to the supreme court.

Plaintiff Givens, sued the defendant to recover damages for personal injury alleged to have been caused by defendant's negligence.

Plaintiff a member of the defendant railway company's bridge gang was returning from work on a push car with Shields, the gang boss. The push car was propelled by a lever car in charge of Sims, the second boss, and other members of his crew. Upon slackening the speed of the lever car preparatory to stopping, the two cars separated, and Sims ordered plaintiff to get off the push car and stop it. While endeavoring to execute the order, plaintiff was struck and injured by the lever car. At the close of the testimony, the court gave a peremptory instruction for the defendant, holding that the case was not within section 193 of the Constitution of 1890, providing that "every employee of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employees as are allowed by law to other persons not employees, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about a different piece of work."

Affirmed.

W. S. Chapman, for appellant.

There is a wide difference in purpose and scope of employment between a railroad corporation and an incorporated construction company. A construction company is a kind of quasi-corporation, and belongs to that class of contractors classed as independent contractors, and is so safeguarded by the decisions of various states, that such companies generally escape ability for any act that they may commit in building railroads and certainly are not governed by the same rules that regulate railroad companies. Speaking of these independent contracts in Thompson on Negligence, Vol. 1, p. 614, § 672, Mr. Thompson says: "Several American courts hold that railroad companies are not liable for the unauthorized trespasses of independent contractors whom they employ to construct or repair their railroads or other works, where the relation of such contractors to the railroad company is such that an ordinary proprietor would not be liable in a similar case. It has been held that the fact that, under the contractor, the work is to be executed under the supervision of the chief engineer of the railroad company, does not take the case out of this rule; since this supervision is reserved merely for the purpose of securing direct results and not for the purpose of controlling the contractor in his method of procedure. These decisions seem to involve in many cases, a denial of justice to property owners through or along whose property railways are constructed. Railway companies, in building their roads, employ non-residents of the particular districts as contractors for that purpose. They are here today and away tomorrow. In addition to this, they are often insolvent. What is still worse, they are often composed of mere dummy corporations, organized by the railroad companies themselves for the purpose of escaping liability for wrong done in the construction of the road. As soon as these dummy corporations have served their purpose they are dissolved, and property owners who are injured by their trespasses are left remediless."

I think the error of the trial judge lay in not drawing the distinction between these two kinds of corporations. I cannot conceive how sec. 193 of the constitution could be so construed as to take in an ignis fatuus corporation like a construction company. The subject matter of the whole section has reference to the employes of railroad corporations, and is confined to that class of persons exclusively. The immunity from liability for any wrongs that may be done by construction companies in the construction of railroads has not been interfered with or restricted in an way by the section referred to. If it is contended that the language of the opinion rendered by the chief justice in the case of Bradford Const. Co. v. Heflin, 88 Miss. 314, carries out the idea that the employees referred to means only those who are engaged in transporting freight and passengers, that all other employees of a railroad company are not included in sec. 193 of the constitution, and that it is shown in the opinion in the Heflin case that it was the intention of the court to exclude employees injured except those running and connected with passenger trains, then the result would be that a considerable number of railroad employees would have no redress in the courts of the state for any wrongs inflicted on them by the negligence, however gross, of those who had the right to command them. It is true that, on page 363, the following language is used: "It manifestly never was the purpose of the constitution makers in said sec. 193 to give to all employees of railroad corporations the remedies therein provided. They meant such employees as were imperiled by the hazardous nature of the business of operating railroad trains. The very ground upon which the United States supreme court all along held that such legislation was constitutional was that the nature of the business of operating railroad cars is inherently dangerous. It would be absurd to hold that there was any inherent danger in discharging the duties of ticket agent, or telegraph dispatcher, or many other officers in which employees of railroads are at work. It would be equally absurd to hold that employees of a railroad corporation engaged in the construction of a round house, or in any other work not at all connected with the operation of the cars, were engaged in work inherently dangerous. They would be in no more danger than any other like employee of any other master. In short, the reason which sustains said sec. 193 of the constitution being the inherent danger attending the actual operation of railroad trains, the remedy must be limited to those employees who such danger imperils."

It appears to me that the true meaning of the paragraph just quoted is plainly disclosed by looking to other portions of the said opinion, and the mention therein of dangerous employments which would not include the class of employees contemplated by sec. 193; and also of certain employees belonging to railroad corporations, whose employment would not expose them to any danger whatever. For instance, a construction company or a mining company, or a logging company, or a lumber company might build a railroad, for the purpose of carrying on a separate business enterprise, and the employees of all of them, engaging in the business of transporting lumber by rail or using the tracks for carrying on the business of their employer might be imperiled thereby and the employment considered dangerous, and in reality might be as much as the work done by a real railroad company in handling a train on a track; and yet, the court says that if these things were true the construction company, mining company, logging company, or lumber company would not find any relief given to them under sec. 193 of the state constitution. So, it was held that the evidence in the case of the Construction Co. v. Heflin showed that Heflin was the servant of the construction company and not of the railroad company. See 88 Miss. 348 and 363.

The court also say that a certain class of employees of railroad corporations was not included in sec. 193, and mentions those certain ones as follows: "A ticket agent, or telegraph dispatcher, or many other officers in which employees of railroads are at work." Also, "employees of a railroad corporation building a round house, or engaged in any other work not connected with the operation of the cars were not included in this section." I contend that the section boss and the hands and a bridge crew under the control of a foreman or chief would be included in sec. 193, and that such employees are therein protected, if through the orders of the ones over them they were injured through the negligence of their superiors.

I think that it was the intention of the court to make a distinction between construction companies and railroad companies, and to show that persons who could recover under sec. 193 of the constitution for injuries caused by the negligence of their superiors were those imperiled by the running of the trains etc., of railroad corporations, and not the employees of construction companies and lumber companies and logging companies, although the danger to their employees might be of a similar nature, and the duties to be performed were of like kind. Another reason that gives to me an abiding faith that the Heflin case does not displace or overrule the Morris case is, that this court is not in the habit of overruling its former decisions indirectly, by stating something that seemingly, to some, might appear antagonistic to an opinion already rendered by it, and especially as the opinion in the one case followed so closely upon the heels of the other. In the case of Morris v. Brookhaven, etc., R. Co., 88 Miss. at page 545, the court says, "It is hypercritical and overstrained interpretation to confine the language to the fellow servant who manually nailed on...