Illinois Cent. R. Co. v. Ray

• Decision Date: 08 May 1933
• Docket Number: 30608
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. RAY

148 So. 233

165 Miss. 885

ILLINOIS CENT. R. CO. v. RAY

No. 30608

Supreme Court of Mississippi

May 8, 1933

Division B

Suggestion Of Error Overruled June 5, 1933.

APPEAL from circuit court, Lafayette county HON. T. E. PEGRAM Judge.

Action by Mrs. Lorine Ray, administratrix, against the Illinois Central Railroad Company and another. A nonsuit was taken as to the other defendant, and from a judgment for plaintiff against the defendant named, defendant named appeals. Affirmed.

Affirmed.

Burch, Minor & McKay, of Memphis, Tennessee, and Creekmore & Creekmore, of Jackson, for appellant.

The wilful violation of the blue flag rule enacted for his protection, compliance with which on his part would have prevented his untimely death, bars the plaintiff's right of recovery in this case, for, under the Federal Employers' Liability Act, he assumed the risk of doing the work in the manner which be did in violation of the rule.

The disregard of a servant of specific orders or standing rules, promulgated for his own safety, will bar his recovery though the injury was due as well to the fault of other servants.

Paster v. Pennsylvania Railroad Co., 43 F.2d 908; Pere Marquett Ry. Co. v. Haskins, 62 F.2d 806.

Whatever may have been the practice, he could not escape this duty and it would be a perversion of the Employers' Liability Act to hold that he could recover for an injury primarily due to his failure to act as required, on the ground that possibly the injury might have been prevented if his subordinate had done more.

Frese, Administratrix v. C. B. & Q. Railroad Company, 68 L.Ed. 131, 263 U.S. 1.

It seems a perversion of the statute to allow his representative to recover for an injury directly due to his failure to act as required on the ground that possibly it might have been prevented if those in secondary relation to the movement had done more.

Davis v. Kennedy, 69 L.Ed. 212.

The deceased could not hold the railroad company liable for a disaster that followed disobedience of the rule intended to prevent it, when the disobedience was brought about by his own acts.

Unadilla Valley Railroad Company v. Caldine, 73 L.Ed. 224, 278 U.S. 139.

Ray's injury followed his disobedience of a rule intended to prevent it, and his disobedience of the rule was the sole proximate cause of the accident that caused his death.

Slocum v. Erie R. Co., 37 F.2d 42, 44; Unadella Valley Railroad Company v. Dibble, 31 F. 239.

The lower court was in error in the instruction given for the plaintiff being the first instruction at the top of the page wherein the court instructed the jury that the suit was brought under the Federal Employer's Liability Act and that it provided that the defendant should be liable in damages to any person suffering injury, among other things, by reason of any defect or insufficiency due to its negligence in its cars.

In the trial of cases under the Federal Employers' Liability Act, state courts sit as federal courts and plaintiff's case must rest upon the kind and amount of proof that would be held sufficient to support the verdict if the case had been tried in the federal courts.

Yazoo, etc., R. Co. v. McCaskell, 118 Miss. 639, 79 So. 817; Gulf, etc., R. Co. v. Hales, 140 Miss. 829, 105. So. 458; Mobile, etc., R. Co. v. Clay, 156 Miss. 463, 125 So. 819; New Orleans, etc., R. Co. v. Branton, 146 So. 870.

It is true that submission to the jury of contested issues of fact is not required in the federal courts, if there is only a scintilla of evidence that it is the duty of the judge to direct the verdict when the testimony and all inferences which the jury could justifiably draw therefrom would be insufficient to support a verdict for the other party and that this federal rule must be applied by state courts in cases arising under the Federal Employers' Liability Act.

Western, etc., R. Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473.

This court also has more than once disregarded a mere conflict in the evidence where the overwhelming weight of the convincing evidence is against the verdict.

Mobile, etc., R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Pennsylvania R. Co. v. Chamberlain, 77 L.Ed. 503; Gulf, etc., R. Co. v. Holcomb, 105 So. 787; Columbus, etc., R. Co. v. Buford, 150 Miss. 832, 116 So. 817; Mobile, etc., R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; Mobile, etc., R. Co. v. Johnson, 141 So. 581; Teche Lines, Inc., v. Mason, 144 So. 383.

The United States Supreme Court recently has reviewed the facts in cases under the Federal Act and has consistently reversed judgments for plaintiff where not supported by credible evidence or opposed to the overwhelming weight of the convincing evidence.

Atchinson, etc., R. Co. v. Saxon, 284 U.S. 458, 76 L.Ed. 397; Atlantic, etc., R. Co. v. Temple, 285 U.S. 143, 76 L.Ed. 670; Pennsylvania R. Co. v. Chamberlain, 77 L.Ed. 503.

George T. and Chas. S. Mitchell, of Tupelo, for appellee.

The violation of orders or rules is nothing more than contributory negligence and goes only in mitigation of damages.

V. P. R. Company v. Hadley, 62 L.Ed. 751.

The act (meaning the Federal Act) places a co-employee's negligence where it is the ground of the action, in the same relation as the employer's own negligence would stand to the question whether plaintiff is to be deemed to have assumed the risk.

C. & O. R. Company v. De Atley, 60 L.Ed. 1016; C. R. I. & P. R. Company v. Ward, 64 L.Ed. 430; San Pedro, Los Angeles and Salt Lake Railroad Co. v. Brown, 258 F. 806, 8 A.L.R. 865; Dahlen v. Hinds, 275 F. 817.

We readily concede that the scintilla of evidence rule, prevailing in our state courts, does not prevail in the Federal Courts, or in cases tried in the State Courts where the Federal Act is involved. However, the testimony in the case at bar so overwhelmingly shows the negligence of switchman Dye that there can be no reasonable insistence that only a scintilla of evidence existed.

There is no merit in the contention that the court erred in giving for plaintiff, the first instruction appearing at the top of page 199 of the record which simply embodied the Federal Act and informed the jury just what the Federal Act was.

Argued orally by H. H. Creekmore, for appellant, and by George T. Mitchell, for the appellee.

OPINION

Ethridge, P. J.

The declaration in this suit was in two counts against both the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company; and, on the trial, the second count was abandoned and a nonsuit taken as to the Yazoo & Mississippi Valley Railroad Company.

It was alleged that the appellant was engaged in interstate commerce on April 3, 1932, on which date the plaintiff's intestate was killed in the south yards of the railroad company at Memphis, Tennessee; that the plaintiff's intestate was a car inspector and repairman, whose duties required him to assist in switching, classifying, handling, inspecting, and repairing cars in the yards. That, under the instructions of his foreman, about 9 o'clock on said date, he went to a car that had just been switched on track No. 2 in the said yards, and was inspecting it, and that such inspection showed a coupler on the south end thereof to be defective and inoperative; that he began to repair the coupler, but before going on the track at the south end of the car, according to custom, he gave the usual and proper notice of his said intention to the employees of the railroad company engaged in switching operations at that point. It was further alleged that an insufficient number of car men were employed, and that the plaintiff's intestate was required to work very hurriedly and to repair cars on the track without interfering with switching operations; that it was the duty of the switchmen not to let any cars be kicked on track No. 2, they well knowing the dangerous position of Ray at the end of the car, but that they opened the switch to track No. 2 and let two other cars come in on that track at a high and dangerous rate of speed, so that the said two cars collided violently with the car on which Ray was working, causing injuries which resulted in his death. It was further alleged that it was the established custom for switchmen to ascertain whether car inspectors or repairmen were engaged in work on the tracks in the yard before kicking cars on said track; that all the switchmen knew that car men were required to, inspect and do light repairs on cars in the yards, including track No. 2, and that it was the custom and, duty of the engine and switching crews to give warning of the approach of any cars to said tracks, so that car inspectors might protect themselves; and that without regard to this duty, two cars were kicked with unnecessary and unusual force against the one on which Ray was working, causing his death.

The defendant pleaded the general issue, giving notice thereunder that the risks and dangers at the time and place mentioned in the declaration were such as were incident to the occupation of Ray; were open, obvious, and apparent, and were known to and assumed by Ray; and gave further notice that Ray was careless and negligent in failing to observe the rules of defendant governing work at the time and place; and that such negligence contributed to and caused the injuries sustained by him.

Defendant pleaded that Ray disobeyed and ignored the following rule "A blue flag displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it. When thus protected, it must not be coupled to or moved. The same workmen that displayed the blue signals alone are authorized to remove them. Other equipment must not be placed on the same track so as to intercept the view of the blue signal without first notifying the...