Lagrone v. Mobile & Ohio Railroad Co

• Decision Date: 21 April 1890
• Parties: W. T. LAGRONE v. MOBILE & OHIO RAILROAD CO
• Court: Mississippi Supreme Court

7 So. 432

67 Miss. 592

W. T. LAGRONE v. MOBILE & OHIO RAILROAD CO

Supreme Court of Mississippi

April 21, 1890

April 1890

FROM the circuit court of Noxubee county, HON. S. H. TERRAL Judge.

This suit was brought against the Mobile & Ohio Railroad Company by the appellant, W. T. Lagrone, for damages on account of an injury received by him while in the service of the company as a section hand engaged in track repairing. The declaration contains three counts, in each of which it is alleged that at the time of the injury plaintiff was working under one Edwards, who was in the employ of the company as section master; that Edwards had full control of the work, and authority to hire and discharge the laborers under him, not exceeding three; that plaintiff was employed by him for the company and received the injury complained of while holding a fish-bar, which the section master was attempting to straighten, in order that it might be used to replace one that was found to be broken; that plaintiff's hand was crushed and permanently injured; that the company had committed to Edwards the duty of supplying the laborers under his command with all necessary implements and appliances, and that it was his duty to have supplied a fish-bar that was not bent or defective to replace the one that was broken.

The first count avers that the duty to provide a fish-bar that was not defective devolved upon the company, and this duty it committed to Edwards; that he negligently failed to provide such a fish-bar, but furnished one that was bent and out of shape, and that, by reason of the negligence of the company in the person of Edwards, plaintiff was injured.

The second count alleges that Edwards wrongfully and negligently commanded plaintiff to hold the fish-bar in a certain position while he struck it with a heavy instrument; that obedience to said command placed plaintiff in a position of far greater risk than was incident to his employment, and that, by reason of these facts and the careless and improper command of Edwards, plaintiff had been injured.

The third count avers that Edwards, in a careless and negligent manner, struck the fish-bar a powerful blow with a heavy instrument while the plaintiff was holding it, which crushed and permanently injured plaintiff's hand.

It was further alleged in each count that plaintiff had but little knowledge or experience as a railroad hand; that he did not know the duties of a section master, but supposed that Edwards was pursuing the line of his duty, and that it was incumbent on plaintiff to obey his commands; that plaintiff was not aware of the hazard he was assuming in obeying such commands. Each count is full and specific as to the time place and manner of the injury, averring that it was caused by the negligence of the said Edwards as the representative of the company, and without contributory negligence on the part of plaintiff.

A general demurrer was sustained to the declaration. Plaintiff declined to amend, and from a judgment of dismissal this appeal is prosecuted.

Affirmed.

Rives &amp Rives, for appellant,

Filed an elaborate written argument, making the following points: --

1. We admit the general rule that a servant takes the risk of injury arising from the negligence of fellow-servants. As to who are fellow-servants the general rule is about the same in all the states, though there is a wider range of exceptions in some than in others. We are not aware of any case decided by this court in which the facts were such as to call for an enunciation of any exception to the general rule as to who are fellow-servants. Manifestly there are exceptions--special cases where the negligent person is not a fellow-servant, but a vice-principal as to the servant who is injured. This is recognized by the language of our own decisions. A corporation master owes certain duties to its servants. It can only act through agents. If to these authority is delegated, they represent the corporation, and it is liable for their negligence causing injury to a servant. Such case constitutes an exception to the general rule that all "co-working in the same common enterprise, and under the same master and compensated by him, are fellow-servants."

2. To a railroad section laborer the company owes the duty of supplying adequate means and materials for the work. The corporation must necessarily commit this duty to some of its servants and employes, and if the person to whom the duty is committed neglects to perform it, the corporation is liable.

3. If a railroad section-master has superintendence of the work of keeping a section in repair, with authority to employ, direct, control and discharge hands, the command of the section-master to the hands under him, in a matter within the general scope of the service, is the command of the company. In such case the superior is vice-principal, and not a fellow-servant with the inferior he has the right to direct, not because of the superiority in rank merely, but because of the right to direct and command for the company.

4. If, under the circumstances just stated, the section-master, in what manual work he does, is to be regarded as a follow-servant, and one of the laborers he has employed is injured, partly by his negligence and partly because the company has furnished defective appliances and materials for the work, the corporation is liable. In other words, if the negligence of the master contribute with the negligence of a fellow-servant to produce injury, the master is liable.

In support of these positions counsel cited the following authorities: McMaster v. R. R. Co., 65 Miss. 267; R. R. Co. v. Hughes, 49 Ib. 258; Cooley on Torts, 555, et seq.; Labor v. Ry. Co., 4 Am. R. 616 ; Flike v. R. R. Co., 13 Am. R. 545 ; Ford v. R. R. Co., 14 Am. R. 598 ; Patterson v. R. R. Co., 18 Am. R. 413 ; Dobbin v. R. R. Co., 31 Am. R. 512 ; Brown v. R. R. Co., 38 Am. R. 285 ; Dowling v. Allen, 41 Am. R. 298 ; 43 Am. R. 318 [10 Lea 741]; 49 Am. R. 718 ; 2 Am. St. R. 82 ; 2 Am. St. R. 631 ; 3 Am. St. R. 92 ; 4 Am. St. R. 348 ; 8 Am. St. R. 311 ; 9 Am. St. R. 386 ; 10 Am. St. R. 67 ; Note to Murray v. R. R. Co., 36 Am. Dec. 289; Note to Fox v. Sanford, 67 Ib. 590; 55 Ill. 234, 495; 46 Wis. 497; 29 Kans. 149; 135 Mass. 575.

R. G. Rives, of counsel for appellant, argued the case orally.

McIntosh, Williams & Russell, for appellee.

1. Every point in this case is settled adversely to appellant by the two recent decisions of this court. McMaster v. R. R. Co., 65 Miss. 267; Ry. Co. v. Petty, ante, 255.

2. The burden of complaint is that Edwards, the section-master, failed to do his duty. But he was a fellow-servant, and there is nothing to take the case out of the operation of the general doctrine. The declaration makes out no case against the master. See Beach on Con. Neg., 123.

3. It is part of the duty of a section-hand to straighten and properly adjust fish-bars. A bent bar is not "dangerous machinery." The injury complained of was within the ordinary risks of the employment.

R. P. Williams, for appellee, made an oral argument.

Rives & Rives, for appellant,

Filed a lengthy suggestion of error, reviewing the whole case, and citing many authorities, in which the following points, among others, were made: --

1. If the master, failing to furnish proper implements and appliances, orders his servant to use such as are improper and defective, and the servant is injured, the master is liable.

2. If an employer commits the entire charge of the business to an employe, with power to choose his own assistants, and to control and discharge them at pleasure, or entrusts the employe with the performance of duties which the employer is bound to perform, the employe is not a fellow-servant with those into whose hands the mere manual execution of the business is entrusted. See note Fox v. Sanford, 67 Am. Dec. 590, where a great many authorities are cited.

So far as this question is concerned, which is presented by the first and second counts of the declaration, we believe it is error to say that it is "in apparent incertitude, owing to conflicting opinions entertained by many courts of last resort in the United States." Courts have conflicted much on other points touching the question as to who are fellow-servants; but as on the points involved in these two counts, they have never conflicted. The extremists on either side harmonize here. If Mississippi holds otherwise, it will be the first state to do so, and this will be the first case in which it is done; and we respectfully submit that it will amount to holding that there can be no vice-principal in this state. When we get that far, a corporation cannot be held at all for injury to...