Illinois Central Railroad Co. v. Bowles

• Citation: 15 So. 138,71 Miss. 1003
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. EDA BOWLES, ADM'X
• Decision Date: 30 April 1894
• Court: United States State Supreme Court of Mississippi

15 So. 138

71 Miss. 1003

ILLINOIS CENTRAL RAILROAD CO. v. EDA BOWLES, ADM'X

Supreme Court of Mississippi

April 30, 1894

March 1894

FROM the circuit court of the second district of Yalobusha county HON. WILLIAM C. McLEAN, Special Judge.

Action by Eda Bowles, as administratrix of the estate of her deceased husband, against the Illinois Central Railroad Company, to recover damages for personal injuries suffered by the intestate, who was employed as switchman or foreman of the yards of the defendant at Water Valley, Miss. On November 4, 1891, a north-bound freight-train arrived at the yards with several defective or crippled cars billed to the Water Valley shops. The switch-list of the train was, by the yardmaster, under whom Bowles worked, delivered to him for the purpose of transferring the defective cars from the yard to the shops. This list showed the destination of the cars but not their condition. One of the ears was without a draw-head, and, instead of being coupled, was chained to the next car. When this chain was drawn out, the cars were two or three feet apart, but otherwise they would come nearly together, within five or six inches of each other. In switching, Bowles signaled the engineer to back, and went between the cars, presumably to uncouple or unfasten them. He was then seen to jump back, but, as he did so, the cars came together, and he was caught between them and injured. He was picked up in an unconscious state, and died in less than an hour from the effect of the injuries, without having regained consciousness. It was shown that Bowles was an experienced and competent railroad man; that it was a part of his duty to couple and uncouple cars in switching, and that it was dangerous to go between cars that were without draw-heads and chained together. These cars came from the vicinity of McComb City, where the defendant had shops at which cars were built and repaired, and they had passed Canton, where the defendant also had shops. On the trial the above facts, substantially were shown, and plaintiff rested. Thereupon the defendant moved the court to exclude plaintiff's testimony and direct a verdict in its behalf. The motion was overruled, and defendant excepted.

Among other things, the defendant offered evidence to show that the deceased was warned of the dangerous condition of the cars he went between, and that he was guilty of contributory negligence causing his injury. On objection that contributory negligence had not been pleaded, and that the defense was not available under § 193, constitution 1890, the evidence was excluded.

The court refused a peremptory instruction for defendant; and for the plaintiff, in effect, instructed that if the cars were taken to Water Valley in a dangerous condition, and that Bowles, in the discharge of his duty, not being wilfully or recklessly negligent, was injured by reason of their unsafe and defective condition, plaintiff was entitled to recover. The defendant asked instructions to the effect that plaintiff could not recover if Bowles knew of the defective condition of the cars that killed him, and voluntarily exposed himself to the danger; that, if he was careless and guilty of contributory negligence, causing the injury, plaintiff could not recover. These instructions were refused.

Verdict and judgment in favor of plaintiff for five thousand dollars. Motion for new trial overruled. Defendant appeals. The opinion contains a further statement of the case.

Judgment reversed and cause remanded.

Mayes & Harris, for appellant.

Section 193, constitution 1890, has no application to this case. It was aimed at the use of defective implements, etc., and was intended to change the common law in only one particular. Under the common law, though it was the duty of the company to furnish reasonably safe machinery, yet, if the servant, with full knowledge, continued to use machinery that was defective, the company would not be liable for injuries. See 2 Rorer on Railroads, p. 1211; 14 Am. & Eng. Enc. L., p. 843. This is the only rule changed.

Neither at common law nor by the constitution are railroad companies insurers of the safety of employes. They are only liable for negligent failure to furnish safe appliances. 3 Woods on Railroads, p. 1455; 2 Rorer, p. 1216.

Every employe assumes the risks of his employment. Hatter v. Railroad Co., 69 Miss. 642; 3 Woods on Railroads, p. 1452; 14 Am. & Eng. Enc. L., p. 842.

The appliances referred to in the constitution are those only which, at common law, the railroad company was required to furnish in a reasonably safe condition. The constitution does not make that negligence which was not such before. The removal or handling of disabled cars is not negligence, and, where the fact that they are in a damaged condition is known to employes, they take the risk of injury thereby. 2 Rorer on Railroads, p. 1215; 61 Ill. 130; 45 Wis. 98; 50 Ib., 462; 58 Texas, 434; 64 Ib., 660; 32 Minn. 54; 135 Mass. 418.

It is the duty of the company to remove damaged cars. Using them in the prosecution of its business is a very different thing.

There is absolutely no proof of negligence in this case. The company was simply transporting the disabled cars, as it had the right to do. It is not pretended that the cars were negligently handled. The court erred in assuming that the company was liable merely because the deceased was hurt while handling the disabled cars.

Chapman & Chapman, for appellee.

It was proper to refuse defendant's instructions as to contributory negligence, first, because there was no evidence to support them, and, secondly, because, under § 193, constitution 1890, it was necessary to show recklessness or gross negligence on the...