J.J. Newman Lumber Co. v. Irving

• Decision Date: 24 June 1918
• Docket Number: 20334
• Citation: 79 So. 2,118 Miss. 59
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. IRVING

79 So. 2

118 Miss. 59

J. J. NEWMAN LUMBER CO. v. IRVING

No. 20334

Supreme Court of Mississippi

June 24, 1918

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Suit by Charley Irving against the J. J. Newman Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Tally &amp Mayson, for appellant.

We insist that the motion to exclude the appellee's testimony and for a permptory instruction should have been granted. Assuming for the sake of argument that the operation of the drum was negligent, still under the facts of this case, the appellee was not entitled to recover unless it be held that the doctrine announced in Hunter v Ingram Day Lumber Company, 110 Miss. 745, 70 So. 109, is to be materially extended. In that case the injured employee was engaged in assisting the loading of the logs drawn up on the cars running on the tracks to be carried to the mill. In the instant case the logs were to be carried up to the track and were to be there placed and separate and distinct crews were to place them on the cars to be carried off, after the skidder force had placed them adjacent to the track. The skidder in question while it rests on tracks during the period of operation it was made stationary by guy wires extending in different directions and in the condition could not move in order along or upon the tracks. With the case at bar, an examination of all the facts will disclose that the appellee was injured solely by his own negligence. He tells us himself that after he had tonged the log he stepped out and gave the signal to the drummer to draw it in; that the drummer applied the steam; that the log was moving along when its passage was obstructed by a stump and he thereupon flagged the drummer, who stopped and that he went in and released the log from the obstruction and before he got out of the way the steam was reapplied and it hit him. That was denied of course by the drum man, who says that the signal given was the signal to move up. However, we insist that there was not such a state of facts as would justify the submission of the case to the jury. If so, then the question of "running on tracks" would have nothing to do with the liability of the appellant. It would be just as much liable to one of its employee's, who felled the timber to be skidded as it would be to the appellee. The question for consideration would be what were the trees to be used for and were they to be transported to the mill and not the classification of the service in which the injured employee was engaged. We respectfully submit that this case should be reversed and dismissed.

Currie & Currie, for appellee.

The appellee contends that section 1 of chapter 194 of the Laws of Mississippi of 1908, page 204, controls the case and that the fellow servant rule has no application.

The act referred to is as follows: "Section 1. Every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power and running on tracks, shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or others, or their employees, as are allowed by law to other persons not so employed." The language of this act applies not only to a railroad corporation or their employees, as are allowed by law to other persons not employed.

The language of this act applies not only to a railroad corporation operating such instrumentalities, but all other corporations and individuals using such instrumentalities. The skidder was in fact a car provided with the necessary machinery and appliances, running on wheels on the railroad track, provided with its own engine and boiler and produced its own...