Illinois Cent. R. Co. v. Abrams

• Decision Date: 16 May 1904
• Citation: 84 Miss. 456,36 So. 542
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. ARTHUR ABRAMS

36 So. 542

84 Miss. 456

ILLINOIS CENTRAL RAILROAD COMPANY v. ARTHUR ABRAMS

Supreme Court of Mississippi

May 16, 1904

FROM the circuit court of Madison county. HON. ROBERT POWELL Judge.

Abrams the appellee, was plaintiff, and the railroad company, the appellant, was defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The opinion states the case.

Reversed and remanded.

Mayes &amp Longstreet, and J. M. Dickinson, for appellant.

To put this case in a nutshell, our propositions are:

First--That while this suit is brought under sec. 193 of the constitution and under sec. 3559 of the code, it is not maintainable under those sections, for the reason that it is a case not within their intent.

The instance declared on is the simple case of a gang of carpenters engaged in putting a new roof on a house. They were not doing railroad work in the constitutional or statutory sense of that term; and if the constitution and statute should be considered as applicable to work of this character, then both the statute and the constitution would be violative of the fourteenth amendment of the constitution of the United States under the rule laid down by this court in the case of Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507.

Secondly--Even if this case did fall under the constitutional and statutory provision above, and even if such constitution and statute were not violative of the fourteenth amendment as above, then still the plaintiff was not entitled to a recovery, because the proof in the case clearly shows that if there was any negligence in the transaction at all (which for the purpose of argument we will concede is settled against us by the verdict of the jury), such negligence was that of a fellow-servant, not his superior officer, and one engaged in the same department of labor and on the same piece of work wherefore it falls within the exception provided for both in the constitution and in the statute, and in his case would still be controlled by common law principles.

Grant that the negligence existed, still it is a case where the work in which the parties were engaged was a piece of common carpentering such as the gang might just as well have been employed in doing for any private citizen on any private property anywhere in the land. It was not railroad work, and there was no reason why any special rule of liability should be imposed in such case on the employer.

It seems idle for us to do more than cite the case of Ballard v. Mississippi Cotton Oil Co. The opinion of the court there was so full, the investigation of authorities was so exhaustive and complete, and the rule announced by the court was so clearly stated, that there is nothing left for us to do, except to cite it. It is true that the point directly decided in the Ballard case was that ch. 66, Laws 1898, was unconstitutional because it included all corporations; but that decision was reached by argument of this court, which throughout asserted the principles for which we now contend; and it is the argument of this court which we now cite and rely on.

But if the case had been properly tried under common law principles, there would have been no liability.

The point of negligence which is sought to be made out by the evidence was that the scaffold was insecure for the reason that the crosspiece on which the planks rested, or, as it is called in this evidence, the ledger, was nailed with eight-penny nails only, whereas ten's or twenty's ought to have been used; and, further, that when Stokes called on Mr. Eaton for larger nails, Mr. Eaton said that there were none larger.

The case is sought to be brought under the rule which existed at the common law in regard to the furnishing of a secure place for the employes to work in; but it does not fall under that rule. If the place was insecure, it was insecure because only of the failure of the plaintiff's own fellow-servant, engaged in the very same job, to make it secure by using properly those common and sufficient appliances with which they had been furnished by the railroad company.

It would be ridiculous to talk about the railroad company being under any legal obligation to furnish to the plaintiff a completed scaffold for him to work upon. All that the company could do was to furnish him and the gang to which he belonged with adequate and sufficient materials out of which to build the scaffold, and to furnish him with adequate and competent co-employes with whom to work (and this case does not proceed upon the line that his co-employes were either insufficient in number or in qualification).

It is perfectly manifest that the whole trouble in this case grows out of the fact that plaintiff's fellow-carpenter, Stokes, did not use a sufficient number of nails in fastening the cross-pieces to the upright. He used only four eight-penny nails.

There are plenty of "scaffold" cases in the books. The distinction is perfectly well marked between a permanent place for employes to work in (including scaffolds or other structures of that nature) and a mere temporary scaffold, the erection of which is part of the job itself. Marsh v. Herman, 47 Minn. 537; Lambuth v. Miss. Pulp Co., 72 Vt. 278; Killea v. Faxon, 125 Mass. 485; Reynolds v. Barnard, 168 Mass. 226; Perigo v. Brewing Co. (Ind.), 52 N.E. 462; Hogan v. Smith, 125 N.Y. 774; Butler v. Townsend, 128 N.Y. 105, 110; Noyes v. Wood, 102 Calif., 389; Hoar v. Merritt, 62 Mich. 336; Beesley v. Wheeler, 103 Mich. 196; Benn v. Null, 65 Iowa 407; Cole Co. v. Admr., 51 Ohio St. 542, 558; Griffith v. Railroad,. 5 Misc. (N. Y. Sup. Ct.), 320; Strange v. McCormick, 1 Phil., 156; Moore v. Railroad, 167 Pa. St., 495.

A. K. Foote, for appellee.

If sec. 193 of the constitution only dealt with those employes engaged with the actual operation of trains, it would never have been questioned, even by railroad counsel, but it goes further, using the term "every employe," in plain, unequivocal language, not subject to the rule of ejusdem generis, as the general words "every employe" comes first and does not follow that part relating solely to employes operating trains; also not subject (in this State, at alt events) to a process of judicial limitation, limiting these words to employes only who are engaged in the operating of trains. "Such action by a court is nothing less than judicial legislation pure and simple," says Chief Justice Whitfield in the Ballard case in speaking of the action of the Alabama, Iowa, and Kansas courts in cases involving the construction of statutes similar to the provisions of our constitution. Sec. 193, then, must stand as a whole or fall as a whole. Chief Justice Whitfield's quotation from the case of Smith v. L. & N. R. R. Co., 75 Ala. 449, in the Ballard case, states ably the reasons that have been advanced in support of the unconstitutionality of sec. 193, but we submit that the theory of the Alabama and other courts that have so held is wrong and not in accord with the decisions of the supreme court of the United States on the subject. The decisions above referred to were based on the erroneous theory that class legislation must operate on all alike--i, e., not only on all within the class alike, but on those without alike also, if those without happen to be engaged in work similar to some particular kind those within the class engage in. For example, take the case at bar. Under the erroneous theory above referred to, sec. 193 would fall, because when the railroad (one of the class) happens to be building or repairing a depot, it is subjected to a different rule of liability for injury to its employes than an individual (one without the class) who happens to be building or repairing a house on an adjacent lot.

But such is not the true rule. The true test is this: "Does the classification operate equally on all within the class, and is there any substantial difference in the nature of the business as to warrant the classification?" If classification operates equally on all within the class, it makes no difference that there is inequality in some particular instances between members of the class and others out of the class, if in the first instance the classification is reasonable. Tullis v. Lake Erie & W. R. Co., 175 U.S. 353 (44 L.Ed. 194); Magoun Case, 170 U.S. 293 (42 L.Ed. 1042); Wenham v. State, 58 L. R. A., 825, 826.

The fact that railroad corporations are engaged in a public business, the public character of that business, makes a sufficient difference for the maintenance of the classification. In St. Louis, Etc., R. R. Co. v. Paul, 173 U.S. 404 (43 L.Ed. 746; 19 S.Ct. 419), a statute subjecting railroad companies to a penalty for neglecting to pay any employe, whom they had discharged, with or without cause, or had refused to longer employ, the unpaid wages of such employe on the day of his discharge or the refusal to longer employ, was held constitutional. Chief Justice Fuller in that case said: "As this amendment rested on reasons deduced from the peculiar character of the business of the corporations affected and the public nature of their functions, and applied to all alike, the equal protection of the law was not denied." Missouri P. Railway Co. v. Mackey, 127 U.S. 295.

A case on all fours with the case at bar was recently decided by the supreme court of Missouri, in Callahan v. St. Louis Merchants Bridge Terminal Railway Co., 60 L. R. A., 249 and it was held directly that the Missouri statute, which is similar to our constitution, did not violate the equality clause of...