Hunter v. Ingram-Day Lumber Co.

Decision Date06 March 1916
Docket Number17540
Citation110 Miss. 744,70 So. 901
CourtMississippi Supreme Court
PartiesHUNTER v. INGRAM-DAY LUMBER CO

APPEAL from the circuit court of Harrison county. HON. J. G BALLENGER, Judge.

Suit by Joe Hunter against the Ingram-Day Lumber Company. From an order sustaining a demurrer to plaintiff's declaration he appeals.

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

Reversed and remanded.

Mize &amp Mize, for appellant.

J. A. Leathers, for appellee.

OPINION

POTTER, J.

The appellant in this case, plaintiff in the court below, filed his declaration consisting of three counts. In the first count the plaintiff alleged that he was employed by the defendant and the defendant failed to furnish a reasonably safe place to work, in that the defendant was engaged in loading logs with a "skidder and a loader." The said skidder and loader were carried out on the defendant's railroad line into the woods where logs are loaded on the cars. The skidder is a machine on which a drum is attached to which are cables extending out into the woods, to the ends of which cables are attached tongs to be fastened on the logs in the woods some distance away. The skidder was operated by steam, and, by the cable mentioned, drew the logs to the tracks to be loaded on the cars. Immediately next to the skidder is the loader, which is a machine or car on which there is a derrick to which is attached a cable, and to the end of this tongs are attached to be fastened onto the logs so they could be hoisted on the cars. The loader was also propelled by steam. In defendant's employ were a number of men necessary to operate said skidder and loader, some to attach the tongs to logs in the woods, others to detach them at the skidder, and others to attach the tongs to logs to be loaded on the train. Appellant's duties under his employment were to attach the tongs belonging to the loader onto the logs after they were brought in by the skidder, and to attach the tongs of the loader to "tops" that might be drawn in so as to throw them out of the way. In loading the car with this skidder and loader arrangement the defendant had in its employ a servant whose duty it was to blow a whistle as the logs drawn by the skidder would come near the place where they were to be deposited to be loaded on the cars, and it was this servant's duty also to operate the skidder. This whistle was blown for the purpose of warning the employees to get out of the way of incoming logs. Appellant knew of this custom, and relied on the customary signal being given him as the logs were drawn in. At the time the appellant was engaged in the performance of his duty attaching the tongs of the loader to "tops" that had been drawn so as to throw them out of the way, and while he was engaged in doing this it is alleged the defendant's servant whose duty it was to blow the whistle of warning as the logs were being drawn in negligently failed to blow the whistle and give the warning, and a log that was at that time being drawn into the place where appellant was at work with his back turned struck another log in close proximity to appellant and drove the last log against appellant's leg and crushed it against the railroad track, severely injuring him.

The second count of the declaration alleged that there was a further rule and custom to have another servant known as a flagman whose duty it was to flag the operator of the skidder when a log was to be drawn in, so that the operator of the skidder would know exactly when to blow the warning whistle, and that this flagman was stationed and maintained by the defendant for that specific purpose, and was kept there all the time so that he could give the skidder operator warning of the approach of the log, so that the skidder operator might blow the whistle, and that this flagman negligently failed in giving the necessary signal on the approach of the log being drawn in on this occasion, and consequently the plaintiff was injured.

A third count combines the negligence alleged in the first and second counts.

The sole question presented for the decision of the court is whether or not the employee to whom defendant had delegated the duty of warning appellant when logs were being drawn in was a fellow servant of the appellant.

At the time the appellant was injured he was an employee of the lumber company which had in operation a railroad used in hauling logs, and this railroad was equipped with cars propelled by steam and the cars ran on tracks. Section 1 of chapter 194 of the Laws of Mississippi of 1908, at page 204 provides that:

"Every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or others, or their employees, as are allowed by law to other persons not employed."

In Construction Co. v. Heflin, 88 Miss. 314 42 So. 174, this court held that section 193 of the Constitution, abrogating the fellow-servant rule as to certain classes of employees of a "railroad...

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10 cases
  • New Deemer Mfg. Co. v. Alexander
    • United States
    • Mississippi Supreme Court
    • 1 Enero 1920
    ... ... not come within the fellow-servant doctrine of the common ... law. Hunter v. Ingram-Day Lumber Co., 110 Miss. 144, ... 70 So. 901; Ellis v. Bear Creek Mill Co., 117 ... ...
  • Eastman, Gardiner & Co. v. Caldwell
    • United States
    • Mississippi Supreme Court
    • 18 Enero 1937
    ... ... St. Louis & S. F. R. Co. v. Guin, 109 Miss. 187, 68 ... In ... Hunter v. Ingram-Day Lumber Co., 110 Miss. 744, 70 So ... 901, the plaintiff, was a servant of the ... ...
  • Ellis v. Bear Creek Mill Co
    • United States
    • Mississippi Supreme Court
    • 27 Mayo 1918
    ... ... This court has held in the case of Hunter v. Ingram Day ... Lumber Company, 110 Miss 744, that an employee engaged ... in tonging logs for ... ...
  • Hercules Powder Co. v. Hammack
    • United States
    • Mississippi Supreme Court
    • 13 Diciembre 1926
    ...of a fellow-servant, for which the master is not liable. This same contention was made in the case of Hunter v. Ingram-Day Lbr. Co., 110 Miss. 744, and also in J. J. Newman Lbr. Co. v. Irving, 118 Miss. 59, with reference to [145 Miss. 306] the loader man who was operating the steam loader,......
  • Request a trial to view additional results

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