Hope v. Natchez, C. & M.R. Co.

• Decision Date: 27 February 1911
• Docket Number: 14153
• Citation: 54 So. 369,98 Miss. 822
• Parties: LEE HOPE, BY NEXT FRIEND, v. NATCHEZ, COLUMBIA & MOBILE RAILROAD COMPANY ET AL
• Court: Mississippi Supreme Court

54 So. 369

98 Miss. 822

LEE HOPE, BY NEXT FRIEND, v. NATCHEZ, COLUMBIA & MOBILE RAILROAD COMPANY ET AL

No. 14153

Supreme Court of Mississippi

February 27, 1911

APPEAL from the circuit court of Lincoln county, HON. M. H WILKINSON, Judge.

Suit by Lee Hope against the Natchez, Columbia & Mobile Railroad Company et al. From a judgment for defendant, plaintiff appeals.

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

Affirmed.

Holden & Cassidy and W. B. Mixon, for appellant.

A peremptory instruction having been given by the court, the evidence introduced by the plaintiff for the purposes of this hearing, must be taken as true. The question for this court to decide then is: "Does the evidence for the plaintiff make out a prima facie case," and, if it does the instruction ought to have not been given. The declaration in this case is drawn in three counts, but the plaintiff on the trial, as the court will see from the evidence introduced relied for a recovery on the negligence of the defendants in failing to provide reasonably safe machinery and appliances for the use of the plaintiff in performing the duty required of him.

That the common law required the master to provide reasonably safe machinery and appliances for the use of its servants, and that the servant had the right to presume that the master had done his duty in that respect, is too well established to require citation of authorities in its support, and this is true whether the master is a corporation, a railroad company or a private person, so it therefore makes no difference in this case whether the Butterfield Lumber Company is a railroad or not, so long as the relation of master and servant between it and the plaintiff existed, the common law applies because it is admitted that the plaintiff was in the employ of the Butterfield Lumber Company at the time he was injured, and that they owned and operated the road and the cars and engines by which he was injured.

In the Am. and Eng. Ency. of Law, vol. 20, page 71, the rule is stated thus:

"The master is bound to use reasonable care and prudence for the safety of those in his service in providing them with machinery and appliances reasonably safe and suitable for their use, and is responsible for any injury from an accident that may happen through any defect in the machinery or appliances which was, or ought to have been known to him and was unknown to the employe."

And the author cites the case of Honora White v. Louisville, New Orleans & Texas Railway Company, 72 Miss. 12.

The same rule in somewhat different phraseology is announced in Cyc., vol. 26, page 1097: "It is the positive duty of a master to furnish his servant with reasonably safe instrumentalities wherewith and places wherein to do his work, and in the performance of these obligations imposed by law, it is essential that regard should be had not only to the character of the work to be performed, but also to the ordinary hazards of the employment, and the servant may assume that the master has performed such duty."

Rapalje & Mack's Digest of Railway Law, vol. 5, p. 67, announces the same rule as follows: "The duties which a railroad corporation owes to its servants and which it is required to perform, are to furnish suitable machinery and appliances by which the service is to be performed, and to keep them in repair and order." And page 88, par. 112 of the same authority makes an application of these principles in a case in which the facts are very similar to the one under consideration.

In vol 20, p. 73, in the Am. and Eng. Ency. of Law, it is also said: "The servant is authorized to rely upon the performance by the master of his duty in this respect, and is under no obligation to investigate and test the fitness and safety of machinery and appliances, unless he knows them to be defective, or, unless he is charged with the duty of examining and ascertaining their safety and suitableness, and cases there cited, including 27 Am. State Rep. 815."

And the rule that it is the duty of the master to provide the servant with reasonably safe machinery and appliances with which to work, and also that the master is liable for any injury received by the servant through his failure to do so, unless it was the duty of the servant to examine the machinery and appliances that is announced in the above decisions is concisely stated in Cyc., vol. 26, page 1213, as follows:

"A person assumes the risks of injury from damages and defects, which are so patent and obvious, that he either knew, or in the exercise of ordinary care ought to have known of their existence. On the other hand, a servant is under no primary obligations to investigate for latent defects and test the fitness and safety of the places, fixtures or appliances provided him by the master. He has a right to rely on the obligation resting upon the master to exercise reasonable care to see that they are fit and safe, and although the circumstances may be such that a servant is chargeable with notice of such defects, as are patent and obvious, and of such defects as in the exercise of ordinary care, he ought to have notice of, he is not to be deemed as having notice of, or assuming the risks of such defects and insufficiencies as can be ascertained only by investigation and inspection for the purpose of ascertaining that there is no danger."

The common law of liability in such cases as formulated by all text writers from Blackstone's time to the present, including the above, has been applied by our court to a case in which the facts were very similar to those in this case. White v. Railway Company, 72 Miss. 12.

We cite the above authorities to show the common law rule and that it has been approved by various eminent text writers on this subject, and we confidently rely upon same for the reversal of this case.

T. Brady, Jr., for appellees.

There is no testimony showing anything at all of the manner in which the alleged defect was occasioned, and the existence of a defect is not, prima facie, evidence of negligence on the part of the master any more than the occurrence of an injury is evidence of negligence. Plaintiff and appellant must show the specific negligence giving rise to the defect. As ...