Harvey v. Smith

• Decision Date: 25 November 1940
• Docket Number: 34302
• Citation: 198 So. 739,190 Miss. 130
• Court: Mississippi Supreme Court
• Parties: HARVEY et al. v. SMITH

198 So. 739

190 Miss. 130

HARVEY et al. v. SMITH

No. 34302

Supreme Court of Mississippi

November 25, 1940

Suggestion Of Error Overruled December 23, 1940.

APPEAL from the circuit court of Tallahatchie county, HON. JOHN M KUYKENDALL, Judge.

Action by Frank Smith against Mike Harvey and another for injuries suffered when struck by train. From a judgment for plaintiff against named defendant, but in favor of other defendant, the named defendant appeals and plaintiff cross-appeals. Affirmed on cross-appeal, and reversed and judgment directed on direct appeal.

Affirmed on cross-appeal; reversed and judgment here on direct appeal.

Brewer & Sisson, of Clarksdale, for Mike Harvey, appellant and cross-appellee.

Defendant Harvey, could not foresee as a reasonably prudent man, that plaintiff at this crossing would stand so close, or remain standing so close to a passing train as to be struck by anything that might be protruding therefrom. He could not have anticipated that there would have been any such object as a wire, rod, or other object protruding from the side of a train that might pass the crossing.

It is the universal rule wherever the common law prevails that the duty of the master in regard to tools, equipment, and places to work is not that of an insurer, is not an absolute duty, but is simply to exercise reasonable care to furnish the servant with reasonably safe tools and appliances, and likewise as to a safe place to work.

Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 353, 128 So. 98; Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842; Wilson & Co., Inc., v. Holmes, 180, Miss. 361, 372, 177 So. 24.

If the said Jackson was negligent in crossing in front of the train which he saw, and as Jackson says, after plaintiff held his hand up as if to stop him, and such negligence contributed to the injury, there is no liability on Harvey, for Jackson was a fellow-servant of the said plaintiff, for whose negligence the master is not liable.

Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Greer v. Pierce, 167 Miss. 65, 147 So. 303; Harper v. Public Service Corp. of Miss., 154 So. 266; Continental Casualty Co. et al. v. Pierce, 154 So. 279.

The defendant Harvey, having furnished the plaintiff with a safe place to work, was entitled to assume or expect that plaintiff would exercise reasonable care on his part to keep from getting hurt. Defendant Harvey had a right to expect that plaintiff would not remain or get so close to any passing trains as to be injured thereby.

Newell Contracting Co. v. Flynt, 172 Miss. 719, 728, 161 So. 298; Martin v. Beck, 177 Miss. 303, 309, 171 So. 14.

Caldwell & Caldwell, of Charleston, Lucius E. Burch, Jr., Frank F. Roberson, and C. H. McKay, all of Memphis, Tenn., and E. C. Graig and V. W. Foster, both of Chicago, Ill., for appellant I. C. R. R. Co.

There was not sufficient proof of any projection to establish liability upon defendant.

Hawthorne v. R. R., 84 S.W.2d 1015; Presler v. R. R., 135 Tenn. 42, 185 S.W. 67; Musto v. LeHigh Valley Ry., 112 A. L. R. 842; Erie R. R. Co. v. Tompkins, 304 U.S. 64; Owen v. I. C. R. Co., 77 Miss. 142.

No duty to plaintiff was violated by defendant, Railroad Company.

Plaintiff was not in position of peril.

Ozen v. Sperier, 150 Miss. 458; N. O. & N. E. R. Co. v. Keller, 162 Miss. 403; Gaines v. T. C. R. Co., 175 Tenn. 393, 135 S.W.2d 441; M. & O. R. Co. v. Bryant, 159 Miss. 535; Gulf Ref. Co. v. Ferrell, 165 Miss. 296.

Speed alone does not constitute negligence.

Hancock v. I. C. R. Co., 158 Miss. 868; M. & O. R. Co. v. Bryant, 159 Miss. 528; N. O. & N. E. R. Co. v. Holsomback, 168 Miss. 490; N. O. & N. E. R. Co. v. Wheat, 172 Miss. 524; Bufkin v. L. & N. R. Co., 162 Miss. 594; Y. & M. V. R. Co. v. Green, 167 Miss. 137, 147 So. 333.

Jamie L. Whitten of Charleston, for appellee and cross-appellant.

Where the master places his servant at a place and in a character of work which exposes the servant to hazard against which the servant cannot, by the use of due care, protect himself and at the same time do his work, the master must then take reasonable care to warn the servant or to erect guards, if either of these are reasonably practicable, and if not, the master must so order or control the method of work so to obviate the danger, so far as reasonably practicable.

McLemore v. Rogers, 169 Miss. 650; Jefferson v. Va. Chemical Co., 184 Miss. 23; Gow Co., Inc., v. Hunter, 175 Miss. 896; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 840; Gulfport Creosoting Co. v. White, 171 Miss. 127; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 353; Williams v. Lumpkin, 169 Miss. 146.

It is not necessary, in considering the question of foreseeability, adopting a coined word which is now sometimes used, that the wrongdoer could have foreseen the particular injury, or the precise form, or the particular manner in which the injury occurred. It is sufficient that the consequence of the negligence was the natural and probable result thereof, although it might not have been specifically contemplated or anticipated.

Cumberland Tel. Co. v. Woodham, 99 Miss. 318; 45 C. J. 918-920; Soloman et al. v. Baking Co., 172 Miss. 388; Keith v. Ry. Co., 168 Miss. 519; Power Co. v. Smith, 169 Miss. 447; Public Service Co. v. Watts, 168 Miss. 235, 250.

In the instant case, defendant Harvey's failure to exercise reasonable care to furnish plaintiff a reasonably safe place to work placed plaintiff in a perilous position from which he tried to extricate himself, only to be struck when his footing gave way, the train striking him and the wheels cutting off his hand.

Plaintiff was in position of peril.

Gulf Refining Co. v. Ferrell, 165 Miss. 269.

This fact was known to defendant Railroad Company.

Knowing that plaintiff was in a position of peril the railroad owed appellant the further duty of so conducting its activities about the premises and by the use of such reasonable precautions as may be reasonably prudent under all the circumstances to avoid exposing persons there employed to unnecessary peril.

Hill v. Chicago, I. & L. R. Co., 122 N.E. 32; Chicago, R. I. & O. Ry. Co. v. McCleary, 53 P.2d 555, 52 C. J. 677, 678, 823, 825; Wyatt et al. v. Y. & M. V. R. Co. et al., 127 So. 479; Jamison v. I. C. R. R. Co., 63 Miss. 33; Ry. Co. v. Pittman, 97 Miss. 416; I. C. R. R. Co. v. Mann, 137 Miss. 819; Yellow Pine Trustees v. Holley, 142 Miss. 241; Y. & M. V. R. Co. v. Lee, 148 Miss. 809; Fuller v. R. R. Co., 100 Miss. 705; Davies v. Mann, 10 Mess. & W. 535.

Whether the defendant railroad company exercised such care or were negligent in operating its train from 25 to 35 miles per hour and in failing to slow down or check the speed of said train and as to whether such negligence, if any, contributed to plaintiff's injury, were all questions for the jury.

Owens v. Y. & M. V. R. R. Co., 94 Miss. 378; R. R. Co. v. Cox, 153 Miss. 589; 52 C. J., sec. 2041; Hinds et al. v. Moore et al., 124 Miss. 500; R. R. Co. v. Hudson, 142 Miss. 542; Staggs v. R. R. Co., 77 Miss. 507; Morgan v. Detroit, J. & C. Ry., 208 N.W. 434, 22 R. C. L. 947; Gray v. Chicago, R. I. & P. R. Co., 121 N.W. 1097.

The question of whether the negligence of the railroad company proximately contributed to plaintiff's injury was certainly for jury.

Gulf Ref. Co. v. Ferrell, 165 Miss. 296; Cumberland Tel. & Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 89; Harrison v. Kansas City Elec. Light Co., 193 Mo. 606, 93 S.W. 951, 7 L. R. A. (N. S.) 203; Keith v. Y. & M. V. R. R. Co., 168 Miss. 519.

Argued orally by Ed C. Brewer, for appellant and cross-appellee Mike Harvey; Lucius E. Burch, Jr., for appellant I. C. R. R. Co.; and by Jamie L. Whitten, for appellee and cross-appellant.

OPINION

Griffith, J.

Appellant Mike Harvey, had a contract to construct the approaches to the overhead bridge on Highway No. 6 at the point about one mile south of Batesville. The overhead bridge is across the line of the Illinois Central Railroad at this point. The dirt for constructing the approach on the west side had to be procured at a place a short distance to the east of the railroad track, and to accommodate this work Harvey obtained a...