Illinois Central R. Co. v. Coussens

• Decision Date: 07 February 1955
• Docket Number: No. 39287,39287
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. Mrs. Jimmie H. COUSSENS, Administratrix of Estate of H. R. Coussens, Deceased.
• Court: Mississippi Supreme Court

Page 818

77 So.2d 818

223 Miss. 103

ILLINOIS CENTRAL RAILROAD COMPANY v. Mrs. Jimmie H. COUSSENS, Administratrix of Estate of H. R.

Coussens, Deceased.

No. 39287.

Supreme Court of Mississippi.

Feb. 7, 1955.

Phillips & McLendon, McComb, for appellant.

B. D. Statham, Magnolia, for appellee.

ARRINGTON, Justice.

The appellee, as administratrix of the estate of her husband, H. R. Coussens, deceased, brought this suit in the Circuit Court of Pike County against the appellant, Illinois Central Railroad Company, for the wrongful death of Coussens, and was awarded damages in the sum of $25,000, from which judgment the appellant appeals.

This suit was brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., which provides that every common carrier engaged in interstate commerce shall be liable in damages to any persons suffering injury while employed by such carrier in such commerce, or, in case of death, to the personal representative of such employee for the benefit of the surviving widow and children of such employee, 'for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.'

Section 53 of the act provides that 'the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.'

In 1939, Section 54 of the act was amended to abolish assumption of risk as a defense to actions brought under this act, and provides that, 'in any action * * * to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; * * *.'

Appellee charged that the appellant railroad was negligent in failing to exercise reasonable care to furnish the deceased with a reasonably safe place within which to work. The appellant denied that it was negligent under the facts of this case.

The substantial facts are as follows: H. R. Coussens, the deceased, was 54 years of age and had worked for the appellant thirty-six years. He was employed in the bridge and building department, and was classified as a carpenter, although he was a blacksmith and welder. On March 11, 1952, he reported for duty at the shops of the appellant in McComb, Mississippi, at 6:45 A.M., at which time he was directed by his foreman, W. H. McNeely, to fix a hinge on a locker in the storeroom. Upon his return about 8:30 A.M., he and his helpers, Freeman and Patterson, went to the coal chute to replace a bushing on the middle wheel on the south side of the coal bucket. The coal chute is a large tower-like structure used to load coal on the tenders of appelant's engines. A large bucket operates in a shaft moving coal from a pit below the ground to compartments in the upper portion of the structure from whence coal is loaded for use by appellant's engines. The bucket moved up and down on tracks in a concrete shaft, which, for the most part, was above ground level, and was open on three sides. A concrete retaining wall completely enclosed the shaft in which the bucket moved from a point four and one-half feet above ground level downward. The top of the concrete retaining wall on the south side of the shaft was eighteen feet ten inches from the bottom of the pit. This south retaining wall, the only wall involved in this suit, was eight feet wide. The enclosed shaft at ground level was eight feet four inches from east to west and six feet eight inches wide from north to south. The coal bucket weighed approximately 1850 pounds, and its dimensions are five feet by five feet at the top, tapering to two and one-half feet by five feet at the bottom, and four feet deep. On the occasion in question one two by ten inch piece of timber had been placed immediately south of the south retaining wall of the shaft from east to west, giving the workmen a platform eighteen inches wide upon which to work. The top of the coal bucket had been pulled up approximately three feet above the top of the south retaining wall and the bucket chained against the east wall of the shaft and secured in position. The axle upon which the bushing was being repaired was approximately fourteen inches above the top of the south retaining wall. Deceased and his two helpers were working on the bucket. All three of the men were on the platform, and at the very edge of the shaft eighteen feet ten inches above the concrete floor of the pit. About thirty minutes before the accident, deceased's foreman, Mr. McNeely, was present and observed the operation, and was directing the repairs. The deceased was seated on the top of the south retaining wall towards the west end of the shaft; he took the bushing and tapped it on the axle, and it appeared to be too tight; he shook the bucket and told the foreman that the bushing was too tight. McNeely the foreman, at this time observed grease on the deceased's hands and told him to stop moving the bucket, that the weight in the bucket when it was loaded would dump it. Then Freeman, one of the helpers, took a block of wood and held it against the bushing, and Patterson, with a maul, drove the bushing in place. The deceased, unobserved by any of the men present, fell to the bottom of the pit, the fall inflicting injuries that resulted in his death on April 3, 1952. No safety measures of any nature were taken to prevent the workmen from falling into the pit.

The primary question in this case is whether the death of Coussens resulted 'in whole or in part from the negligence of any of the officers, agents or employees of' the appellant railroad company, by which he was employed, or whether Coussens' death resulted solely through his own negligence.

First and foremost in our consideration of this cause is the knowledge that this Court must follow the interpretations put upon the Federal Employers' Liability Act by the Supreme Court of the United States. The rights created by the act are federal rights granted employees of designated carriers by the Congress of the United States, protected by federal, rather than local rules of law. Regardless of the local rule prevailing in a given jurisdiction, suits brought in the State Courts under the Federal Employers' Liability Act are to be tried and determined in accordance with the provisions of said act as construed by the Supreme Court of the United States. St. Louis-San Francisco Ry. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; New Orleans & Northeastern R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, 15 N.C.C.A.,N.S., 647; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.

The Supreme Court's interpretation of the act has been in the light of the common law, and it is clear from the decisions of that Court that the common-law concept predicating negligence upon the employers' failure to exercise reasonable care to provide workmen with a reasonably safe place to work is incorporated into the act. This is made abundantly clear by the forceful statement of the United States Supreme Court in Bailey v. Central Vermont Ry., Inc., supra [319 U.S. 350, 63 S.Ct. 1063], in the following language:

'Sec. 1 of the Act makes the carrier liable in damages for any injury or death 'resulting in whole or in part from the negligence' of any of its 'officers, agents, or employees.' The rights which the Act creates are federal rights protected by federal rather than local rules of law. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44 [1 N.C.C.A. 875]; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas.1915B, 475 [8 N.C.C.A. 834]; Chesapeake & O. R. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157. And those federal rules have been largely fashioned from the common law (Seaboard Air Line R. Co. v. Horton, supra) except as Congress has written into the Act different standards. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 . At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain. 3 Labatt, Master & Servant, (2d ed.) Sec. 917. That rule is deeply engrained in federal jurisprudence. Patton v. Texas & P. R. Co., 179 U.S. 658, 664, 21 S.Ct. 275, 277, 45 L.Ed. 361 , and cases cited: Kreigh v. Westinghouse, Church, Kerr & Co., 214 U.S. 249, 256, 257, 29 S.Ct. 619, 621, 622, 53 L.Ed. 984, 988; Kenmont Coal Co. v. Patton, 6 Cir., 268 F. 334, 336. As stated by this Court in the Patton case it is a duty which becomes 'more imperative' as the risk increases. 'Reasonable care becomes, then, a demand of higher supremacy, and yet, in all cases it is a question of the reasonableness of the care, reasonableness depending upon the danger attending the place or the machinery.' 179 U.S. at page 664, 21 S.Ct. 275, page 278, 45 L.Ed. 361 . It is that rule which obtains under the Employers' Liability Act. See Coal & Coke Ry. Co. v. Deal, 4 Cir., 231 F. 604; Northwestern P. R. Co. v. Fiedler, 9 Cir., 52 F.2d 400; Thomson v. Boles, 8 Cir., 123 F.2d 487; 2 Roberts, Federal Liabilities of Carriers, 2d ed., Sec. 807. That duty of the carrier is a 'continuing one."

The Federal Employers' Liability Act, as construed by the Supreme Court of the United States, places upon the appellant railroad the duty to exercise reasonable care to provide its workmen with a reasonably safe place to work. Failure so to do is negligence...