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

• Decision Date: 26 May 1919
• Docket Number: 20711
• Citation: 81 So. 642,120 Miss. 93
• Parties: GULF, M. & N. R. CO. v. NUTT
• Court: Mississippi Supreme Court

81 So. 642

120 Miss. 93

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

No. 20711

Supreme Court of Mississippi

May 26, 1919

Division A

MASTER AND SERVANT. Injury to section hand. Number of men required to work.

A railroad section foreman was not negligent in directing two section hands to carry a cross tie weighing one hundred pounds for thirty or forty feet and place it upon a stack of cross ties higher than a man's head.

HON. J D. BATES, Judge.

APPEAL from the circuit court of Tippah county, HON. J. D. BATES Judge.

Suit by C. C. Nutt against the Gulf, Mobile & Nathen Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

J. N. Flowers and J. T. Brown, for appellant.

Thomas E. Pegram and J. L. Bates, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a judgment for one hundred and fifty dollars awarded the appellee in the court below for an injury alleged to have been sustained by him while employed by the appellant and because of its negligence.

On the occasion in question the section crew, of which appellee was a member, was ordered by their foreman to gather up a lot of cross-ties which had been placed near the appellant's railroad track, carry them a distance of thirty or forty feet, and place them in one stack. The appellee testified that at the time of his alleged injury he had been employed by the appellant nearly two months, during which time, whenever he assisted in stacking cross-ties, three men were assigned to each tie, but it does not appear from the evidence how frequently he had assisted in that work. The cross-ties were of pine, the dimensions of each were six inches by eight inches by eight feet, and each weighed one hundred pounds. He further stated that after directing that the cross-ties be placed in one stack the foreman left the men and did not return until after he, the appellee, was injured; that at the time of his injury the stack "was higher than a man's head" which "was higher than was customary," but how much higher he did not say; that in placing a tie on the stack the men handling it "would give three swings, and then turn it loose, which would put it on top of the stack." The manner of his injury was described by him as follows:

"On the third swing, as we were placing the tie on the stack, I just turned it loose, and must have strained myself some way and it was...