Gulf, M. & N.R. Co. v. Walters

• Decision Date: 01 June 1931
• Docket Number: 29404
• Citation: 134 So. 831,161 Miss. 313
• Parties: GULF, M. & N. R. CO. v. WALTERS
• Court: Mississippi Supreme Court

134 So. 831

161 Miss. 313

GULF, M. & N. R. CO. v. WALTERS

No. 29404

Supreme Court of Mississippi

June 1, 1931

Division A

1. MASTER AND SERVANT.

Statute forbidding greater train speed than six miles an hour in town does not embrace railroad employees among those to whom it gives right of action (Code 1930, section 6130; Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

2. APPEAL AND ERROR. In action for railroad brakeman's death, giving instruction based on inapplicable statute forbidding greater train speed than six miles an hour in town held prejudicial error (Code 1930, section 6130; Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

The instruction was, in substance, that, if at time of brakeman's death, locomotive and car which caused his death were being operated at a greater rate of speed than six miles an hour within corporate limits of town, such speed was unlawful, and, if jury believed from preponderance of evidence that such speed proximately caused or contributed to injury and death of brakeman, then railroad company was liable to plaintiff for damages sustained by her as result of death.

3 COMMERCE.

Interstate character of train that was being made up when brakeman was killed was fixed by fact that it contained car loaded with interstate merchandise (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

4. COMMERCE.

Test of employment in interstate commerce is whether employee at time of injury was engaged in interstate transportation or in work so closely related to it as to be practically part of it (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

5 COMMERCE.

Where brakeman, when injured, was riding on intrastate car being backed for purpose of making it part of train containing interstate car, he was engaged in interstate commerce (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

6. MASTER AND SERVANT.

Brakeman riding on top of car had right to presume engineer would exercise reasonable care for his safety (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

7. MASTER AND SERVANT.

Brakeman did not assume risk attributable to operation of train at dangerous rate of speed, until made aware of danger, unless speed and danger were so obvious that ordinarily careful person in his situation would have observed the one and appreciated the other (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

8. MASTER AND SERVANT.

If speed of train and consequent danger were so obvious that brakeman must have been aware of excessive speed and appreciated danger, he assumed risk, unless he was confronted with sudden danger from which he did not have time opportunity, and means of extricating himself (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

9. MASTER AND SERVANT.

In action for death of brakeman, instructions on assumption of risk held improperly refused (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

10. TRIAL.

In action for brakeman's death, granting plaintiff's instruction on law of assumption of risk applicable where couplers were defective held error, where there was no evidence warranting finding that couplers were defective (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]; Federal Safety Appliance Act [45 U.S.C. A., section 1 et seq.]).

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Greene county, HON. J. D. FATHEREE, Judge.

Action by Cora E. Walters, administratrix of the estate of Leonard Walters, deceased against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

C. C. Smith, of Richton, J. W. Backstrom, of Leakesville, W. S. Welch and Ellis B. Cooper, both of Laurel, for appellant.

A railroad employee is engaged in interstate commerce when his work is so closely related to interstate commerce as to be practically a part of it, as the purpose of the work controls.

Louisville & Nashville R. Co. v. Parker, 61 L.Ed. 119, 242 U.S. 13; New York C. R. Co. v. Carr, 238 U.S. 260, 59 L.Ed. 1298; Pennsylvania Co. v. Donat, 239 U.S. 50, 60 L.Ed. 138; Penn. R. Co. v. Morrison, 3 F. 986; Grigsby v. Southern Ry. Co., 3 F.2d 989.

Negligence of the master is not basis of recovery where the employee knew thereof and appreciated the danger.

Jacobs v. Southern R. Co., 241 U.S. 229, 60 L.Ed. 970; Seaboard Air L. R. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Y. & K. V. R. Co. v. Dees, 83 So. 613, 121 Miss. 439.

The Federal Employers' Liability Act places a co-employee's negligence, when it is the ground of the action, in the same relation as that of the employer upon the matter of the assumption of risk.

Chicago R. I. & R. R. Co. v. Ward, 252 U.S. 18, 64 L.Ed. 430.

Plaintiff having voluntarily entered into an employment that required him on proper occasion to ride on a moving train, he assumed the risk of injury normally incident to that operation, other than such as might arise from the failure of the locomotive engineer to operate the train with due care to maintain a moderate rate of speed in order to enable plaintiff to work without undue peril to himself. But plaintiff had the right to presume that the engineer would exercise reasonable care for his safety, and cannot be held to have assumed the risk attributable to the operation of the train at an unusually high and dangerous rate of speed, until made aware of the danger, unless the speed and the consequent danger were so obvious that an ordinarily careful person in his situation would have observed the one and appreciated the other.

Chesapeake & O. R. R. Co. v. DeAtley, 241 U.S. 310, 60 L.Ed. 1016.

Section 6130, Code 1930, does not apply to railroad employees.

Dowell v. Vicksburg R. Co., 61 Miss. 519.

The employee need not himself be engaged in interstate commerce but must be engaged in work of interstate commerce or in work so closely related thereto as to be a part thereof.

Pennsylvania Co. v. Morrison, 3 F. 986; Industrial Commission v. Payne, 259 U.S. 182, 66 L.Ed. 888.

Where the employee was aware of the excessive speed and appreciated the danger and undertook no steps to prevent it, he assumed the risk.

Roach v. The Los Angeles & S. L. R. Company (Utah), 280 P. 1053, 280 U.S. 613, 74 L.Ed. 655.

J. M. Byrd, of Leakesville, and Currie & Currie, of Hattiesburg, for appellee.

Under the Federal Employers' Liability Act, declaring that a railroad company shall be liable for injury or death resulting in whole or in part from the negligence of the officers, agents, or employees of such carrier, the fellow servant rule is abrogated, notwithstanding the defense of assumption of risk is preserved; and, though the two defenses originally grew out of the same principle, a servant does not assume the risk of a fellow servant's negligence.

Elliott v. Illinois Cent. Co., 71. So. 741; Seaboard Air Line Railway v. Horton, 58 L.Ed. 1062.

The hazard of negligence by fellow employees is not assumed, unless a dangerous method of action or condition, not constituting the violation of any statute enacted for the safety of employees, has become established through the negligence of a fellow employee or employees, of which the employee had constructive or actual notice, and, with such notice, he continued to work without calling the attention of the employer to the dangerous condition.

Washington Terminal Co. v. Callihan, 276 F. 334; Wright v. Yazoo & M. V. R. R. Co., 197 F. 94; Southern Railroad Co. v. Mays, 239 F. 41; Boston, etc. R. R. Co. v. Benson, 205 F. 876; Grybowski v. Erie R. R. Co., 88 N. J. L. 1, 95 A. 764, 98 A. 1085, 89 N. J. L. 361.

Appellee's intestate was not engaged in interstate commerce at the time of the accident.

Van Brimmer v. T. & P. R. R. Co., 190 F. 394; I. C. R. R. Co. v. Behrens, 58 L.Ed. 1051.

The line of distinction is so narrow on the facts that it was doubtful whether appellee's intestate was engaged, in interstate commerce, and it was highly proper, in that view for the court to submit the question to the jury for its determination.

1 Robert's Federal Liabilities of Carriers, sec. 461, p. 798; North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591; Pennsylvania Co. v. Donat, 60 L.Ed. 139.

Defense of assumption of risk cannot be made, where injury occurs by single act creating sudden emergency without warning.

Sumner v. Ann Arbor R. Co., 209 N.W. 184, 235 Mich. 293.

The rule that a railroad employee must look out for himself applies only when the action causing his injury was one naturally to be expected.

Kippenbrock v. Wabash R. Co., 194 S.W. 50, 270 Mo. 479.

So far as extraordinary hazards are concerned, an interstate railway employee may assume that the employer and his agents have exercised proper care with reference to his safety until notified to the contrary, unless the want of care and the dangers arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.

Chicago, etc., R. Co. v. Ward, 252 U.S. 18, 40 S.Ct. 275, 64 L.Ed. 430, 173 P. 212, 68 Okla. 201; Director Gen. of Railroads v. Templin, 268 F. 483, 254 U.S. 656, 41 S.Ct. 218, 65 L.Ed. 460.

OPINION

Cook, J.

The appellee, Cora E. Walters, as administratrix of the estate of Leonard Walters, deceased, instituted this against the appellant, Gulf, Mobile & Northern Railroad. Company, to recover damages for the death of the said Walters while he was serving as a brakeman on the yards of the appellant at Union, Mississippi, and, from a judgment in favor of said administratrix for two thousand five hundred dollars, the railroad company prosecuted this appeal.

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