Illinois Central Railroad Co. v. Daniels

• Decision Date: 11 November 1895
• Citation: 19 So. 830,73 Miss. 258
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. J. M. DANIELS

19 So. 830

73 Miss. 258

ILLINOIS CENTRAL RAILROAD CO. v. J. M. DANIELS

Supreme Court of Mississippi

November 11, 1895

October 1895

FROM the circuit court of Holmes county HON. C. H. CAMPBELL Judge.

This was an action for damages, brought by J. M. Daniels, a conductor and foreman of a construction train, for personal injuries sustained by him, and alleged to have been caused by the failure of the defendant railroad company to provide suitable and safe cars for the transportation of earth gravel and other materials necessary for the repairing of its roadway, and its failure to have such cars periodically inspected by skilled mechanics, to ascertain if they were in suitable condition for safe use, and to send such as were not to the shops for repairs. The declaration alleges that the cars supplied to the plaintiff were rotten and unsafe, and that their condition was known, or could have been, to the mechanics, servants of defendant, whose duty it was to inspect and repair the same, and that, in consequence of such negligence, the plaintiff was permanently injured by a cable tearing out of the rotten sill in the side of one of said cars while unloading dirt thereon, etc.

The defendant plead the general issue, and also plead the contributory negligence of the plaintiff "in attempting to load a cable by attaching it to the engine, and then starting the engine, when it caught on a stump, and produced a tension against the sill of a car that was not intended to be used in that way, and which broke said sill, and allowed said cable to fly outward, and strike and break the leg of plaintiff, who was carelessly standing too near, and who carelessly and negligently ordered and directed said unusual and unexpected way of loading said cable."

To this plea, plaintiff filed two replications, one being a general traverse, and the other denying contributory negligence, and alleging that he was using ordinary care and diligence in the discharge of his duties at the time he was injured.

The opinion states the evidence. The court refused to grant a peremptory instruction in favor of the defendant. It granted the second, third and fourth instructions asked by the defendant, but modified the same, against defendants' objection, by inserting in them the following words respectively: In the second, "And not from rotten or defective sills;" in the third, "And not because of the defect or rottenness of the sill of the car;" and in the fourth, "Not on account of being rotten or defective. "

As modified, these instructions are as follows: (2) "The court instructs the jury that if they believe, from the evidence, that the plaintiff was in full control of the work train and was at liberty to load the cable as he saw fit, and that in doing so he pet the sill of the cars and the stanchions thereon to a strain that was not intended by the railroad company, and that the plaintiff was hurt by the sills and stanchions, either or both, giving way under such strain, and not from rotten or defective sills, they will find for the defendant." (3) "The court instructs the jury, that if they believe, from the evidence, that the sill and stanchions would have guided the plow, if the cable had been pulled through shives attached to the sides of the cars on the long or outside of the curve, and that the plaintiff caused the cable to be pulled by two engines against the sills and stanchions from a fulcrum in the water on the inside of the curve, and that the sill and stanchions were not constructed by the railroad company, nor intended by the company, to be subjected to such strain, and that the plaintiff was hurt by the giving way of the still and stanchions, either or both, and not because of the defect or rottenness of the sill of the car, under such circumstances they will find for the defendant." (4) "That if the evidence shows that the stanchions on the sides of the cars were for the purpose of guiding the plows, and that plaintiff, Daniels, used or caused to be used said stanchions in pulling the cable against a stump, or other obstruction in the water, and, in doing so, put a greater strain on them than they could bear, and they gave way, not on account of being rotten or defective, and he, Daniels, was struck and injured by the cable on account of the giving way of such stanchions, they will find for the defendant."

The jury found for the plaintiff, awarding him $ 1, 800 damages. A motion for a new trial was overruled and the defendant appealed.

Reversed and remanded.

Mayes & Harris, for the appellant.

The defendant was entitled to the peremptory instruction asked. It had furnished appliances that were safe for the purpose for which they were intended, and to which their use should be confined, and it is not responsible to a servant who puts them to uses for which they were never intended, because they turned out to be unfit for such unintended use. The fact that the sill and stanchion were not able to stand the immense strain put upon them by the plaintiff, did not constitute a cause of action against the defendant, because, non constat, the sill was perfectly safe and suitable for the use for which the defendant intended it, and for which it was placed in the plaintiff's hands. The plaintiff was given reasonably safe and suitable machinery and appliances for loading, carrying and unloading dirt. He was not employed by the defendant to pull stumps, and when he undertook to pull stumps with such appliances, and they turned out to be unfit therefor, the company is not liable. Felch v. Allen, 98 Mass. 572.

The plaintiff himself gives a statement of the character of the work in which he was engaged, and for which the machinery and cars placed in his hands were intended. There is not a suggestion anywhere in the record that, in the usual course of business, such an emergency as the one that did arise would arise, and that the stanchion and sill could not be relied on to protect the plaintiff from injury. The whole occurrence was extraordinary and unprecedented, and there is not a hint or suggestion in the record that, for the legitimate purpose for which the cars were provided, they were not perfectly safe and suitable. It is argued that an inspection of the cars was necessary to provide against the contingency that arose. All of the evidence goes to show that, under ordinary inspection, the defect alleged to exist would not have been seen. The plaintiff himself says that he had been using this particular train of cars for over three months, and he had never discovered anything wrong about it. The other witnesses say that the defect was one which could not have been discovered by sounding the sill. There is really no evidence that an inspection of the cars was necessary for the purpose for which they were intended in their ordinary and legitimate use, nor does the evidence show that they were at all unfit for that use. And, besides, it is...