Illinois Cent. R. Co. v. Price

Decision Date25 March 1895
Citation72 Miss. 862,18 So. 415
CourtMississippi Supreme Court
PartiesILLINOIS CENTRAL RAILROAD CO. v. J. J. PRICE

FROM the circuit court of Pike county, HON. W. P. CASSEDY, Judge.

The opinion states the case.

Affirmed.

Mayes &amp Harris, for appellant,

Filed a lengthy brief, reviewing and discussing the evidence, and contending that it failed to show any negligence on the part of the defendant, but, on the other hand, showed contributory negligence on the part of the plaintiff; that the case, as relied on by the plaintiff as showing negligence, is not the case made by the declaration; that no connection is shown between the injury and the alleged negligence; that the evidence showed that plaintiff was not injured by unsafe and unsuitable cars of the defendant, but by cars of other roads which, by law, defendant is required to transport; that the failure of defendant to instruct plaintiff as to the hazard of coupling cars of different structure from its own cannot be considered, as it was not alleged in the declaration, and was not an issue tried; that defendant, being bound by the constitution to transport the cars of other roads, is under no duty to inspect them before it receives them.

Defendant was not negligent in transporting foreign cars with bumpers unlike its own. 109 Mo. 187; 67 Ib., 239; 50 Iowa 680; 88 Ill. 112; 77 Ib., 365; 51 Mich. 253; 45 Ib., 212; 33 Ib 133; 11 So. 667; 44 Kan. 612; 21 Hun, 396; 135 Mass. 201; 69 Miss. 642; 63 Ib., 562.

Cassedy & Cassedy, for appellee.

Under the circumstances of this case, it was the duty of appellant to instruct appellee as to the proper method of coupling cars with bumpers, and to warn him of the extra danger and hazard attending the coupling. Being inexperienced, he could not reasonably be expected to understand a new and undisclosed danger produced by the introduction of these foreign cars which, without warning of any kind, he was ordered by a superior employe of the company to couple. Hungerford v. Railway Co., 41 Minn. 444; Railroad Co. v. White, 76 Tex. 102; Railroad Co. v. Callbreath, 66 Ib., 526; Reynolds v. Railway Co., 64 Vt. 66; 50 Mich. 70; 118 N.Y. 489; 41 Minn. 439; 44 Cal. 187; 66 Wis. 268; 41 La. Ann., 964; 139 Penn., 42; 9 F. 337. It is true that appellee may have seen the bumpers as the cars approached, and he may have known that they were foreign cars, but, having experience only in coupling ears without bumpers, the mere sight of them did not necessarily disclose the fact the bumpers would come together at the same time, or before the drawheads met. It was only the actual collision of the bumpers that revealed to him the risk, the hazard and the danger. When cars are so constructed that the slightest indiscretion on the part of the employe will prove fatal to him, he should be acquainted with the danger and instructed as to the proper method of performing the duty required of him. 71 Ill. 214; 76 N.C. 320; 81 Me. 572. It makes no difference that the cars belong to another company. 100 N.Y. 462.

A case could hardly arise more peculiarly for the jury. All the questions are of fact. Were the cars in proper and safe condition? If not, was the negligence of defendant, thus established, the proximate to cause of the injury? Was the plaintiff negligent, and, if so, did such negligence proximately contribute to the injury? Did he assume the risk? Had he experience? Was he, or should he have been, possessed of knowledge of the risk under the circumstances? These questions were for the jury. Beach on Con. Neg., §§ 448, 449, 450, 451, and authorities cited.

We know of no case where the receiving company is absolved entirely from the duty of inspecting foreign cars. This duty is affirmed in numerous cases, a few of which we cite: 18 Am. & Eng. R. R. Cases, 140; 41 Ib., 259; 15 Ib., 196; 100 N.Y. 462; 94 Mo. 468; 97 Mich. 329; 52 N.W. 942; 56 Ib., 756; 111 N.C. 482.

Argued orally by J. B. Harris, for appellant.

OPINION

WOODS, J.

This action was instituted for the recovery of damages for injuries sustained by plaintiff by reason of the negligence of appellant. In his declaration, it is alleged, in substance, that he was a switchman in the yards of the appellant at McComb City, and subject to the orders of the yardmaster and switch engine foreman, the superior agents of defendant at said town; that, in attempting to make a coupling of two cars, in the making up of a train in the yards, and while obeying the orders of his said superiors so to do, he had his arm crushed between the cars, whereby the amputation of his hand was necessitated, and he rendered unfit for service in railway employment; that the cars which he attempted to couple in the making up of the train were placed in said train under the direction of his superiors, and that he himself, in obeying his superior's orders and attempting to make such coupling, was exercising ordinary care and caution; that said cars were defective and of improper construction, and were dangerous to those handling them in operating the railroad; that the drawheads and bumpers of said two cars which he was ordered to couple, and which he attempted to couple, were improperly constructed, and the link stop of one of the drawheads was wanting; that defendant was negligent, and failed in its duty to plaintiff, in furnishing him such defective and dangerous cars to handle; that the defects in these cars and appliances, if not known to defendant, could have been discovered by the ordinary methods of inspection, the same being patent; and, finally and in general terms, that by the negligence of defendant and its said superior agents, the injuries complained of were received. The defendant pleaded the general issue, and contributory negligence on plaintiff's part. To the latter plea, plaintiff replied denying his negligence. Verdict and judgment for plaintiff for $ 6,500, from which defendant appeals.

It is contended by counsel for the railroad company that, the evidence showing undisputedly that the two cars said by appellee to have been defective and dangerous, and in attempting to couple which he was injured, were foreign cars, one being a Peerless Tank Line car and the other a Georgia Pacific coal car, and that inasmuch as "all railroad companies shall receive and transport each other's passengers, tonnage and cars, loaded or empty, without unnecessary delay or discrimination," under the requirement of § 184, constitution of this state, defendant was not bound to either repair or inspect these cars of other roads before receiving them for transportation over its own road. As this proposition, if maintainable, ends the controversy, let us first give it consideration. Let us, however, guard the discussion against drifting into the erroneous proposition laid down by the learned counsel for the railroad company, when they assert that "there seems to be only one question, in the case, and that is, was the defendant negligent in transporting foreign cars with bumpers over its road?" That is not the bone of contention. Counsel for appellee does not rely upon the converse of that proposition, and, if they did, we should pass it without serious remark, as it is so manifestly opposed to reason and authority as to need no confutation. The real question is, may defendant receive from other roads, for transportation over its lines, cars which are defective and dangerous, and, without inspection or repair, transport the same, and, with immunity from liability to its servants who may receive injury from compulsory handling of such cars, require its employes to assume the hazards of such transportation? We confess our inability to see any reason for imposing liability upon a railway company for subjecting its servants to perils and injuries in the use of its own machinery and cars, and exempt the same company from liability to the same servants because of negligence on its part in using dangerous cars of another railway company. whet satisfactory reason can be assigned for requiring the railroad to furnish its servants with suitable and safe machinery and appliances of their own for the discharge of their duties to their employer, and yet permit the railroad to receive unsafe and dangerous cars from any road in the United States, and, without responsibility to its servants, constrain them to perform their duties to it with cars, appliances and machinery, however dangerous, and however obvious the unsafeness and dangerousness of the cars, appliances and machinery? The constitutional provision which requires all railroads to receive and transport each other's cars, etc., without unnecessary delay or discrimination, is a simple corollary from the previous declaration of the same section of the constitution that railroads are public highways. It is impossible to conceive that it was the intent of the constitution framers to exempt from liability a railway so negligent to its servants as to furnish them dangerous machinery and appliances, when, in every other line of that instrument relating to railways and their employes, the declared purpose to widen and enlarge the accountability of the railway went to the extent of almost wholly destroying the fellow-servant doctrine. Being the owners of public highways in this state, railroads are very properly required to receive from each other cars to be transported without unnecessary delay, but it is impossible to believe that they are thereby required to receive and transport cars however obviously defective and dangerous, and thereby subject its servants, and the traveling public on its trains, to certain peril and disaster.

We need not attempt to review all the evidence, for, in our opinion that is unnecessary. There is some evidence showing, or tending to show, that the coupling...

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