Graves v. Gulf & S. I. R. Co

• Decision Date: 15 November 1926
• Docket Number: 25693
• Citation: 110 So. 234,146 Miss. 130
• Parties: GRAVES v. GULF & S. I. R. CO. [*]
• Court: Mississippi Supreme Court

110 So. 234

146 Miss. 130

GRAVES v. GULF & S. I. R. CO. ^[*]

No. 25693

Supreme Court of Mississippi

November 15, 1926

Division A

1. APPEAL AND ERROR.

Variance between declaration and proof cannot be availed of on appeal where motion to exclude evidence and grant peremptory instruction was not based thereon.

2 PLEADING.

Under Hemingway's Code, section 559, variance between pleading and proof, which is not misleading, is immaterial, and amendment of pleading may be had.

3. MASTER AND SERVANT.

Under Federal Employers' Liability Act (U. S. Comp. St sections 8657--8665), employee assumes only ordinary risks incident to employment, which are not attributable to employer's negligence.

4. MASTER AND SERVANT. Negligence in operation of train and motorcar, whereby section hand was injured, held for jury (Federal Employers' Liability Act [U. S. Comp. St. sections 8657--8665]).

In section hand's action for injuries, under Federal Employers' Liability Act (U. S. Comp. St., sections 8657--8665), railroad's negligence in operating train and motorcar carrying section employees at speed of thirty-five to forty miles per hour, or in operation of motorcar as to manner of applying brakes at time of meeting train, held for jury.

5. MASTER AND SERVANT. Instruction that employee assumed risk in voluntarily jumping from motorcar meeting train held erroneous, as failing to consider circumstances making it necessary to jump.

Instruction in employee's action, under Federal Employers' Liability Act (U. S. Comp. St. sections 8657--8665), against railroad for injuries alleged to have occurred when thrown from motorcar, when it was suddenly stopped on meeting gravel train, as to assuming risk of injuries, if he voluntarily jumped therefrom, held erroneous as failing to consider existing circumstances, wherein it might have appeared reasonably necessary to jump, in order to save his life.

6. MASTER AND SERVANT.

Railroad employee should not be held responsible for mistake of judgment in jumping from motorcar, if it reasonably appeared necessary to jump to save his life.

7. MASTER AND SERVANT.

Damages incident to impending collision are not assumed by employee so as to preclude recovery for injuries, tinder Federal Employers' Liability Act (U. S. Comp. St., sections 8657--8665), if he acted as reasonably prudent person would, under like circumstances.

8. JUDGMENT.

Whether prior proceeding, pleaded in bar of present suit by minor railroad employee for injuries, was fraudulent or was by authority of minor, instituted and conducted in good faith, held for jury.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Covington county, HON. W. L. CRANFORD, Judge.

Suit by Abor Graves, a minor, by his next friend, Robie Graves, against the Gulf & Ship Island Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

E. L. Dent and W. U. Mounger, for appellant.

Refused instruction No. 4 should have been granted because it merely told the jury that the plaintiff being a minor was not bound by any agreement to compromise and settle the claim, whether such agreement was with his father or with a claim agent of the railroad.

There are two manifest objections to instruction No. 2 given appellee. The first objection to this instruction is that it told the jury it was its sworn duty to find for appellee if the appellant jumped off the motor car before it stopped, after he saw the smoke of the train, and that this was true regardless of the apparent danger, or the belief of appellant that he would be run over and killed by the approaching train. The instruction is, therefore, contrary to the action of any ordinary human being, because any one situated as appellant was when he saw the approaching train certainly had a perfect and legal right voluntarily to jump from the motor car in an effort to save his life.

Plaintiff was at the time in a very precarious position. Haste was demanded to save his life and he had no time to consider; and yet the court held in this instruction that plaintiff, a minor, must act coolly, with perfect precision and good judgment; and if he jumped when he saw the smoke of the train, before the motor car came to a stop, he, under the instruction, assumed the risk and must lose his case. See R. R. Co. v. Lowe, 73 Miss. 203.

Appellant did not assume the risk of his employment which arose from the negligence of any of the officers, agents, or employees of appellee, and if the negligence of the section foreman in running the motor car in the direction it was run at the time and place of the injury, or if his negligence in suddenly stopping the motor car contributed in whole or in part to the injury of appellant, a recovery should have been had in this case.

This instruction is condemned by the supreme court of the United States in Norfolk S.W. R. R. Co. v. Earnest, 229 U.S. 114, 33 S.Ct. 654; Lehigh Valley R. R. Co. v. McGranahan, F.2d 431; Davis, Director General of Railroads, v. Hynde, 4 F.2d 42.

The record shows that the declaration in the suit in the second district of Jones county was in the name of Abe Graves v. G. & S. I. R. R. Co., but does not show defendant to be a corporation, and the plea and judgment does not show defendant to be a corporation. 23 Cyc. pages 1243, 1527; Carrier v. Powels, 87 Miss. 599-600.

With reference to the judgment obtained in the second district of Jones county, and the turning over of the money to the father and stepmother of appellant, the case at bar is strikingly similar to McRaney et al. v. N. O., etc., R. R. Co., 90 So. 881. The cases cited in that case Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neil, 46 Miss. 669; Richardson v. Brooks, 52 Miss. 118, go to show that "fraud vitiates everything and may be collaterally attacked, and this applies to the judgments and decrees of all courts."

T. J. Wills, for appellee.

There are two reasons why this case should never have been submitted to the jury.

I. There was a variance between the pleadings and the proof. This variance was fatal, and the motion to exclude the evidence should have been sustained. The introduction of evidence by the defendant after this motion was overruled in no wise waived the right of the defendant to have this court pass upon the motion and no evidence was introduced that in any wise whatever tended to cure the error of the court in overruling this motion. Drake v. Surget, 36 Miss. 458; Carter v. Preston & Stetson, 51 Miss. 423; Pierce v. Jarnagin, 57 Miss. 107.

II. The defendant was entitled to the peremptory instruction requested at the close of the case. The plaintiff was a section hand. By agreement in the pleadings the defendant was engaged in interstate commerce, and the plaintiff was so employed at the time of his injuries. The defendant pleaded assumption of risk and issue was joined in short on the affirmative defense so pleaded.

Under the Federal Employer's Liability Act, a servant assumes all the ordinary, usual, and normal risks of the business if the master has used reasonable care for his protection, and also all such other risks as he knows of, or which were so unquestionably plain and clear that he must have known of their existence and danger to the employee. T. & P. R. R. Co. v. Archibald, 170 U. D. 665; Gila Valley R. R. Co. v. Hall, 232 U.S. 94; Black v. Portland Cement Co., 104 Va. 450, 51 S.E. 831; Norton Coal Co. v. Murphy, 108 Va. 528, 62 S.E. 268; C. & O. R. R. Co. v. Meadows, 89 S.E. 244; 3 Labatt's Master and Servant, section 1189, page 3204 et seq.

It was held under the Federal Employer's Liability Act that in an action for injuries to a brakeman who fell between the cars of a freight train while it was switching at a time when there was a rough and unusual jerk of the train that the evidence was insufficient to show negligence, it not appearing that the jerk was unnecessary in the operation of the train. C. & O. R. R. Co. v. Walker's Adm., 167 S.W. 128.

In this case it is shown that it was very necessary that the motor car be quickly stopped and removed from the track. There was an unexpected meeting with the gravel train, but not an unusual occurrence experienced by the section foreman, and crew in the discharge of their duty on the section. See Pearson v. G. N. R. R. Co., 115 Minn. 164, 131 N.W. 1084.

Appellant complains of the second instruction requested by the defendant and given by the court. There was evidence that the plaintiff voluntarily jumped from the motor car while it was still in motion. The surrounding circumstances show that if he had not jumped from the car, it would have come to a stop, would have been taken off the track before the train came by and without injury to him.

Appellant relies upon McRaney v. N. O., etc., R. R. Co., 90 So. 881, to vitiate the other judgment. This case is not in point. The court in that case was construing a statute known as the death statute, section 721, Code of 1906. It is shown that the minors at the time of the filing of the former suit were not represented by either guardian or next friend, and for that reason their rights were not and could not be determined. The statute, section 669, Hemingway's Code, provides that minors may sue by their father and next friend. The suit having been brought by the father and next friend, the judgment rendered thereon is binding unless there was a fraud perpetrated by the defendant upon the minor. There was no evidence of any fraud whatsoever in this case. However, the question of fraud was submitted to the jury and found in favor of the defendant.

OPINION

COOK, J.

The appellant, who was a minor, instituted this suit, by next friend, against the Gulf & Ship Island Railroad Company,...