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

• Decision Date: 11 June 1928
• Docket Number: 27156
• Citation: 153 Miss. 72,117 So. 881
• Parties: GULF, M. & N. R. Co. v. GRAHAM. [*]
• Court: Mississippi Supreme Court

117 So. 881

153 Miss. 72

GULF, M. & N. R. Co. v. GRAHAM. ^[*]

No. 27156

Supreme Court of Mississippi

June 11, 1928

Division B

Suggestion of Error Overruled Aug. 24, 1928.

APPEAL from circuit court of Jones county, Second district, HON. R S. HALL, Judge.

Action by Mary Graham, administratrix of the estate of Billie Graham, deceased, against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed as to liability, and reversed and remanded for trial on the question of damages only.

Affirmed in part and reversed and remanded in part.

W. S. Welch, Ellis B. Cooper and Roy P. Nobel, for appellant.

Collins & Collins and J. L. Thompson, for appellee.

Argued orally by Ellis B. Cooper, for appellant, and Jeff Collins, for appellee.

REPORTER'S NOTE: This case was held up in an unsuccessful attempt to locate the briefs for reporting.

OPINION

ANDERSON, J.

The appellee as administratrix of the estate of Billie Graham, alias Billie Ulmer, deceased, brought this action in the circuit court of the second district of Jones county, against appellant, to recover damages for the death of the said Billie Graham, alleged to have been caused by the negligence of appellant. There was a trial, resulting in a verdict and judgment for appellee in the sum of five thousand dollars, from which judgment appellant prosecutes this appeal.

Besides the general issue, appellant pleaded that, if any one was responsible for the injury and death of the decedent, it was not appellant, but the Jackson & Eastern Railroad Company, by which the deceased was employed at the time of his injury and death.

It is undisputed in the evidence that at the time of his death the deceased was engaged as a member of a construction crew, in construction work on the Jackson & Eastern Railroad, between Union and Jackson, in this state. He was operating a track jack. With it he was jacking up a rail on the Jackson & Eastern Railroad. A track jack in railroad construction is used in lifting railroad tracks. It has cogs on a ratchet, and there is a handle, from four to six feet in length, on which the power is brought to bear in order to jack up the load. The evidence tended to show that the deceased was using one of these jacks; that it was defective, in that two of the cogs on the ratchet had been broken off; that the deceased was jacking the track up when the missing cogs caused the jack to trip, resulting in his being struck in the stomach with great force with the handle of the jack, throwing him across the jack. This occurred probably about eight o'clock in the morning. He complained of being hurt, but continued his labors until noon, when he was taken to the camp of the construction crew, where a physician attended him. He was afterwards carried to the general hospital in Laurel, in this state, where he died two days later.

At the time of his injury, the deceased was twenty-two years of age, earning two dollars and fifty cents a day. The evidence tended to show that he was a strong, able-bodied man, except he was afflicted with hernia, commonly referred to as rupture. His mother received for her support contributions from the deceased of about two hundred dollars a year. In addition to such contributions, when he was at home he rendered her services about the home.

At the threshold there arises for decision the question whether at the time of deceased's injury he was in the employ of appellant and serving appellant as such, or whether that relationship existed between the Jackson & Eastern Railroad Company. Putting it differently, at the time of the injury of the deceased, did the relationship of master and servant exist between the deceased and appellant, or did it exist between the deceased and the Jackson & Eastern Railroad Company?

The evidence touching this question was substantially as follows: When injured the deceased was a member of the railroad construction crew of which Cooper was foreman and Brogan straw boss, and so was Allen Craig, who was an important witness in the case. This construction crew consisted of several persons (how many is not shown by the evidence, and is not material). The equipment of the crew consisted of one or more railroad engines (the number shown by the evidence is indefinite), camp cars, and the usual tools and implements, including track jacks used by such crews in the construction and repair of railroads. This entire railroad construction outfit, including engines, cars, and tools of every kind, belonged to appellant, and, up to a short time before the deceased was injured, constituted one of appellant's construction crews, with which appellant's railroad was maintained. Shortly before the injury complained of, appellant ordered this construction crew to move onto the Jackson & Eastern Railroad, between Union and Jackson, in this state, and thereupon, under the direction of Cooper and Brogan, the straw boss, the crew was moved off of appellant's line of railroad onto that of the Jackson & Eastern Railroad, and proceeded to carry out appellant's instructions. While the crew was so engaged, as stated, the deceased was injured.

The evidence for appellee tended to show that the railroad construction crew were being paid for their services by appellant, while there was some evidence for appellant tending to show that they were being paid by the Jackson & Eastern Railroad Company; but the evidence, without conflict, showed that after the deceased's injury he was sent by appellant to the general hospital at Laurel, and after his death appellant sent his remains to Bay Springs, in this state, where he was buried. It was undisputed in the evidence that the particular jack which it was alleged caused deceased's injury and death constituted part of the equipment of appellant's said construction crew. It was also shown without conflict that, when this construction crew had completed its labors on the Jackson & Eastern Railroad, appellant ordered it back to its own line of railroad; in other words, that the crew went to the Jackson & Eastern Railroad for certain purposes, under the direction of appellant, and when it had accomplished the object of its going, by direction of appellant it returned to appellant's line of railroad and there continued its services to appellant. Later the evidence tended to show in some way appellant acquired control of the Jackson & Eastern Railroad, and was operating it at the time of the trial of this cause.

The question whether the right defendant was sued is an issue of fact to be determined by the jury, like any other issue of fact. Whether the right defendant was sued in this case depends on the question whether there existed at the time of the injury of the deceased the relationship of master and servant between appellant and the deceased. Any competent and relevant evidence tending to prove or disprove the relationship in question was admissible. 26 Cyc. 971, par. 5; pages 1424, 1425, par. M. We think it fairly inferable from the evidence bearing on this question that the Jackson &amp Eastern Railroad Company employed appellant to do certain work on the line of the railroad of the former, between Union and Jackson, in this state, and that appellant, in carrying out such contract, used and controlled its own construction crew and equipment. We think, therefore, the jury was justified in finding that to be true. Under the law, if the Jackson & Eastern Railroad Company employed appellan...