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

• Decision Date: 08 June 1925
• Docket Number: 25000
• Parties: GULF & S. I. R. CO. v. HALES. [*]
• Court: Mississippi Supreme Court

105 So. 458

140 Miss. 829

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

No. 25000

Supreme Court of Mississippi

June 8, 1925

Division B

Suggestion of Error Overruled Sept. 21, 1925.

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

Action by E. B. Hales against the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed.

T. J. Wills, for appellant.

To the charge of negligence in failing to furnish a safe place in which to work, in that the ground was uneven around the tank so that because of its unevenness the ladder rocked or tilted as plaintiff was coming down it, the defendant filed two pleas. The first was, that the plaintiff was employed and the defendant was engaged in interstate commerce at the time of the injury, and that the Federal law controlled. The replication admitted this, so that, without the necessity of the introduction of proof, the trial of the case passed from under the state laws and is controlled by the Federal statutes fixing the relationship and liability of employer and employee engaged in interstate commerce.

That the ground was uneven and rolling at the place of the tank was apparent to the plaintiff when he went there to work, and so he assumed the risk incident to this rolling ground and the ladder sitting by the side of the tank on the rolling or sloping ground, in the discharge of his duty.

The plaintiff's own evidence supported conclusively the plea of assumption of risk, and having assumed the risk, as is shown by his own evidence, the peremptory instruction requested by the defendant should have been given. St. Louis & S. F. R. R. Co. v. Snowden, 149 P. 1083 (Oklahoma); Burke v. Union Coal & Coke Co., 157 F. 178, 84 C. C. A. 626; So. Kan. Ry. Co. v. Drake, 53 Kan. 1, 35 P. 825; Seaboard Air Line v. Horton, 233 U.S. 492; Director General of Railroads v. Bennett, 268 F. 767; Davis v. P. & R. R. Co., 276 F. 187; Hartwich v. C. & A. R. R., 286 F. 672; Wash. Terminal Co. v. Sampson, 289 F. 577; Pryor et al. v. Williams, 254 U.S. 43.

Instruction number two told the jury that if they believed from the evidence that the plaintiff was injured through the negligence of the defendant in failing to furnish him a safe place and way to work, they should find for the plaintiff, and should assess his damage, under their oaths, in a sum that should fully compensate him. This shut out entirely the consideration of his assumption of risk of the master's negligence that was open and apparent to him. This was error.

Hilton & Hilton, for appellee.

Appellant's brief on the proposition that appellee assumed the risk of his employment, and authorities cited to sustain same, is based exclusively upon the theory that the issue raised by the evidence as to the negligence of appellee was solely whether appellee received his injury by his own negligence or the negligence of appellant, the master, by failing to provide a safe way to work as well as a safe place and manner in which to work. In this he is in error.

Railroad Company v. Snowden, 149 P. 1083, an Oklahoma case, is not applicable to the issue involved at bar, as will be disclosed by the proof in the record. Certainly, it is true, as argued by counsel, contra, that where the injury is not caused by any violation of Employer's Liability Act, it is a question of law for the court on the assumption of risk, provided there is not a conflict in the evidence. This is all that the case of Southern Pac. R. R. Co. v. Sely, 152 U.S. 145, 38 L.Ed. 391, holds. And all the other authorities cited by counsel for appellant on this proposition are along the same theory. But as disclosed by the testimony in this case, we have no such state of facts as would justify the application of these authorities.

We call the court's attention to the evidence to show that the proposition of law involved was not the negligence of appellee, under which the rules of assumption of risk would apply, but that it involved the negligence of appellee's master and his co-worker, and, therefore, appellee did not assume the risk of his employment under the state of facts in this case.

Fleming v. Norfolk So. R. R. Co., 76 S.E. 212 (North Carolina), held that as the federal statute is general in its holding, and makes no specific regulation as to the methods of procedure when action is brought in state courts, the procedure should conform as near as could be to that of state laws applicable, including the character of action, the order and manner of trial, the rules of pleadings and evidence. We cite that because counsel for appellant complains that instruction number two was given to appellee, and that thereby shut out the appellant entirely in having the advantage of a consideration of the assumption of risk of appellee. Our answer to that argument is that this instruction is on the issues as made by appellee's theory of the case, and as sustained by this record; and that appellant got full and complete benefit of any defense of the assumption of risk of appellee by his instruction number five.

We call the court's attention to Wright v. Y. & M. V. R. R. Co., 197 F. 94, announcing the rule that an employee assumes the risk of ordinary dangers incident to his employment but not including acts of the carriers, officers, agents or other employees, or any defect or insufficiency due to its negligence in its cars, engines, appliances, tracks, roadbed, wharves, etc. This case is applicable here because appellee charges in his pleadings, and sustains same by his proof, that appellant was negligent in furnishing a defective ladder, in that it was too short, and built under the direct supervision of the foreman, and over the protest of appellee as to its length. It is further shown that the roadbed was uneven, and the place given appellee to work was unsafe. Moreover, it is shown that the injury happened as a result of co-worker Slade's having moved the ladder in a negligent way to an unsafe place.

See, to the same effect, Boston M. R. R. Co. v. Benson, 205 F. 876; Penn. R. R. Co. v. Goughnour, 208 F. 961.

In view of the fact that the federal courts have held that an employee does not assume the risk of his master's negligence, or that of his co-workers, see our own court's position on the assumption of risk. Edwards v. Haynes, Walker Lbr. Co., 74 So. 284; Murray v. Matthews, etc., Co., 56 So. 330; Sea Food Co. v. Alves, 77 So. 857.

OPINION

ANDERSON, J.

The appellee, E. B. Hales, brought this action against appellant, Gulf & Ship Island Railroad Company, in the circuit court of Simpson county, to recover damages for an injury received by him while engaged about his duties as a servant of appellant, and recovered a judgment for five thousand dollars, from which appellant prosecutes this appeal.

Appellant was engaged in interstate commerce, and appellee was likewise employed at the time of the latter's injury. The federal Employers' Liability Act (U. S. Comp. St., sections 8657-8665) therefore applies, and with it the doctrine of the assumption of risks. Appellant assigns as error the action of the trial court in refusing to direct a verdict in its favor. In determining the propriety of that action of the court, the evidence must be treated as proving every material fact of appellee's case which it either proves directly or by reasonable inference. So viewing the evidence, appellee made substantially the following case:

He was employed by appellant in the capacity of a carpenter in its bridge gang. His foreman was Ike Farmer. His only co-worker at the time of his injury was H. C. Slade. Under the direction of appellant's foreman, appellee and his co-worker Slade were engaged in repairing one of appellant's water tanks on its line of railroad, from which its locomotives were accustomed to take water. The repair work in which they were engaged was putting new staves in the water tank, and tightening up the hoops around the tank, and otherwise mending it so that it would hold water. The materials for the repair work had previously been unloaded at the tank. Among the repair materials was lumber for making a ladder to be used by the workmen in going up on the platform on which the water tank sat. The piers to the water tank sat on uneven ground. On the side where the ground was highest it was about twelve feet from the ground to the platform on which the tank rested. There was a decline to such an extent that on the opposite side of the tank the distance from the ground to the platform was about sixteen or seventeen feet. The foreman directed appellee and his co-worker to make a ladder from the materials furnished by appellant, to be used in the progress of the work in going from the ground to the platform and back. The upright pieces out of which the ladder was constructed were only twelve feet in length. Appellee complained to appellant's foreman that the ladder should be longer. The latter said it was long enough, and directed appellee to use it in the work of repairing the tank.

Appellee's injury was received by him at a time when his co-worker was inside the tank at work, and appellee was going down the ladder to the ground from the platform on which the tank sat. He was coming down with his back to the ladder, stepping on each rung in going down. While thus engaged the ladder rocked from side to side, causing his foot to miss a rung, which resulted in a wrench of his leg backward so violently as to throw his knee out of joint.

Appellee bases liability on three grounds, first, that he was furnished an unsafe place to work, in that the ground around the tank was uneven and the ladder furnished him with which to do the work was too short to properly reach from the ground to the platform on...