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

• Decision Date: 18 April 1927
• Docket Number: 26439
• Citation: 147 Miss. 421,111 So. 451
• Parties: GULF & S. I. R. CO. v. BRYANT. [*]
• Court: Mississippi Supreme Court

111 So. 451

147 Miss. 421

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

No. 26439

Supreme Court of Mississippi

April 18, 1927

Division A

MASTER AND SERVANT. Employer held, liable for coercing, under threats, inexperienced youth to continue work in cold and rain, there being no assumption of risk.

There was a violation of master's duty to warn of danger and no assumption of risk, so that master was liable, where on third day of an inexperienced youth's employment as a section hand, and after he had been compelled by the foreman to discard his red sweater, a cold rain started, and he told the foreman that he was cold and sick and wanted to quit, and the foreman continued to refuse him leave to do so and coerced him by threatening "to beat hell out of him" if he did not continue at his work.

HON; W L. CRANFORD, Judge.

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

Action by John Bryant, a minor, against the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

T. J. Wills, for appellant.

39 C. J., page 518, states the general rule as to assumption of risk. The federal statute applying, the appellee assumed the risk of the dangers incident to his work. The fact that he was a minor does not in any sense relieve him of the assumption of the risk of the dangers that are apparent and open so that one of his age and experience and capacity would in the exercise of ordinary care know and appreciate. Cudahay Packing Co. v. Frank Marcan, minor, by next friend, 106 F. 645, 54 L. R. A. 258; Derringer v. Tatley, 157 N.W. 811, L. R. A. 1917 F 187.

The fact that appellee complained to the section foreman that he was wet and cold and was directed and ordered to go back to work does not relieve him of the assumption of risk or place liability on the master for the inconvenience and suffering occasioned by the exposure to the cold and rain. See Stenbog v. Minn. Transfer R. R. Co., 108 Minn. 199, 121 N.W. 903, 25 L. R. A. (N. S.) 262; King v. Interstate Consolidated Street Ry. Co., 23 R. I. 583, 70 L. R. A. 924.

This court has decided this question in Yazoo City Transportation Co. v. Smith, 78 Miss. 140, 28 So. 807. If it were contended that the act of the section foreman was willful in requiring him to work until the track could be made safe for the train to run over, the answer would be that the necessity for the safety of the travelling public required that this should be done.

E. L. Dent, for appellee.

It was so manifest from the pleadings and uncontradicted evidence that appellee did not assume the risk of being forced by threats of violence to work in the extraordinary and unusual cold and rain without sufficient clothing, that appellant did not even request an instruction to the jury on the assumption of risk. No condition could arise under the Federal Employers' Liability Act, the common law or the statute of any of the states of the Union, whereby a person could be forced into involuntary servitude, except on conviction of crime, as appellee was forced to work in the cold, sleet and rain without sufficient clothing. See Annie Hough et al. v. Texas Pac. R. R. Co., 25 L.Ed. 612, where the supreme court of the United States deals fully with the assumption of risk. 39 C. J., 518, cited by counsel for appellant, does not apply to the facts in this case. See however, 39 C. J., pages 689, 800, 1292.

City Transportation Co. v. Smith, 78 Miss. 140, 28 So. 807, cited by counsel for appellant as decisive of the question in the case at bar, may be clearly distinguished. In that case, no physical force, threats of bodily harm, or involuntary servitude was involved. The injured servant was a full grown deck-hand. A case strikingly similar to the one at bar is Carrl v. Interstate Consol. R. R. Co., 23 R. I. 593, 51 A. 305.

OPINION

MCGOWEN, J.

In the circuit court Bryant, a minor, seventeen years of age, recovered a verdict and judgment for seven hundred fifty dollars damages for failure of duty on the part of the railroad company to treat him in a humane manner, while he was engaged in their employment as a section hand working on its track, by forcing him to work, against his will, in cold, rainy weather, without the necessary clothing to protect him from the cold and rain, and failing to warn him of the risk.

The railroad company pleaded to the declaration that the railroad company and the plaintiff were engaged in interstate commerce, and that Bryant took the risk; that the Federal Employers' Liability Act (U. S. Comp. St., sections 8657-8665) controlled the measure and manner of recovery in this case.

The proof showed that Bryant worked one day for the railroad company in a red sweater, and that the section foreman, who hired and discharged men at will, ordered him not to wear the red sweater, and stated that as red was a signal of danger it was against the rules of the railroad company to wear it. Bryant worked the next day without his sweater. He returned to work at eight o'clock a. m. on the third day, and at about nine o'clock it began to rain. He testified that at 9:30 he was cold and sick from the cold rain as he had on cotton trousers and shirt and overalls, the section foreman having ordered him to leave his sweater off. He testified further, that the section foreman had on his raincoat, and the other three section hands had on coats. He stated that he applied to the section foreman for leave to quit work, and was told that "eight hours" constituted a day's work and to get back to work; that he continued to work, shoveling dirt under cross-ties, and such other work as came to hand, ate his lunch from his lunch bucket at the noon hour, in the rain, and returned to work; that at 2:30 p. m. the section foreman had built for himself a fire, and was warming himself thereby and thereat, when he (Bryant) applied to him again, and told him that he was sick and wanted to go home, to which request for leave to quit work the section foreman replied in a rude, angry, and threatening manner, peremptorily ordering him to go back to work or he would "beat hell out of him." Bryant worked all that day, according to his testimony, and went home that night in the rain, and from the exposure he had a "spell" of illness from which he had never recovered. He stated that at the time he was employed by the railroad company he...