Legan & McClure Lumber Co. v. Fairchild

• Decision Date: 04 November 1929
• Docket Number: 27952
• Citation: 155 Miss. 271,124 So. 336
• Parties: LEGAN & MCCLURE LUMBER CO. v. FAIRCHILD
• Court: Mississippi Supreme Court

124 So. 336

155 Miss. 271

LEGAN & MCCLURE LUMBER CO. v. FAIRCHILD

No. 27952

Supreme Court of Mississippi

November 4, 1929

Division A

Suggestion of Error Overruled December 2, 1929.

APPEAL from circuit court of Winston county, HON. JNO. F. ALLEN Judge.

Action by Mrs. Ellen Fairchild against Legan & McClure Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cause affirmed.

Watkins, Watkins & Eager, of Jackson, and E. M Livingston and J. B. Gully, both of Louisville, for appellant.

Proximate cause of decedent's death his own reckless and unnecessary exposure to obvious danger.

Appellant not an insurer that decedent would not be injured in course of his employment.

Howard v. R. R. Co., 50 Miss. 178; Kent v. R. R. Co., 77 Miss. 494; R. R. Co. v. Wooley, 77 Miss. 927; R. R. Co. v. McCleland, 80 Miss. 700; Matthews v. R. R. Co., 93 Miss. 325.

Unless appellee established by competent evidence that injury sustained by decedent was result of appellant's negligence, peremptory instruction should be given.

R R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Hubbard v. So. Ry. Co., 83 So. 247, 120 Miss. 834; Meridian L. & Ry. Co. v. Dennis, 100 So. 581, 136 Miss. 100; Board of Levee Comm'rs v. Montgomery, 145 Miss. 718, 110 So. 845; Krebs v. Street Ry. Co., 117 Miss. 771, 78 So. 753; Carrere v. Johnson, 115 So. 196, 149 Miss. 105.

Undisputed proof shows machinery would become stopped in three ways: (1) by engine's becoming jammed, which took place; (2) Governor would have slowed down revolutions of the fly-wheel if engine had not jammed; (3) shutting off of steam at engine room, which was done, and the action taken by husband of appellee was unnecessary.

Chattanooga L. & P. Co. v. Hodges (Tenn.), 97 A. S. R. 844; I. C. R. R. Co. v. Daniels, 73 Miss. 258, 19 So. 830; Billingsley v. I. C. R. R. Co., 100 Miss. 612, 56 So. 790; Meridian L. & Ry. Co. v. Dennis, 100 So. 581, 136 Miss. 100; Batson Lbr. Co. v. Thames, 114 So. 325, 147 Miss. 794; Brady v. Oregon Lbr. Co. (Ore.), 45 A.L.R. 812; Sann v. John's Mfg. Co., 44 N.Y.S. 641; New York, etc., Ry. Co. v. Dailey, 179 F. 289; 102 C.C.A. 660; Seefried v. Wangler Bros. Co., 181 Iowa 504, 164 N.W. 739, L.R.A. 1918B, 854; Jackson Lbr. Co. v. Lawford, 204 Ala. 83, 85 So. 262; Commonwealth Steel Co. v. McCash, 184 F. 882, 107 C.C.A. 206; Wilbourn v. Charleston Cooperage Co., 90 So. 9, 127 Miss. 290.

Decedent had no duty to perform for appellant in engine room and was going beyond scope of his authority in entering same. Such being true, a peremptory instruction should have been given appellant.

Natchez Cotton Mill v. McLain, 33 So. 723; Y. & M. V. R. R. Co. v. Slaughter, 45 So. 873, 92 Miss. 289; Traction Co. v. Faulk, 80 So. 340, 118 Miss. 894; Hinton Bros. v. Polk, 78 So. 179, 117 Miss. 300; Martin Bros. v. Murphree, 96 So. 691, 132 Miss. 509; R. R. Co. v. Boyd, 107 So. 1, 141 Miss. 593; Von Scoter v. Megginson, 110 So. 247, 144 Miss. 510; Judkins v. R. R. Co. (Me.), 14 A. 735; 39 C. J. p. 803, par. 1011; Delano Mill Co. v. Osgood, 246 F. 273, 276, 159 C.C.A. 3 (Me.); Mellor v. Merchants Mfg. Co., 150 Mass. 362, 5 L.R.A. 792; Leistritz v. American Zylonite Co., 154 Mass. 382, 28 N.E. 294; Aziz v. Atlantic Cotton Mills, 185 Mass. 156, 75 N.E. 73.

Instructions Nos. 1 and 2 given at the instance of appellee's counsel announcing the rule that even if Fairchild was employed customarily as an oiler, yet that he would be acting within the scope of his employment to enter the engine room under the circumstances, if such course was reasonably necessary in order to save human lives and protect the property of appellant, were erroneous for the following reasons:

(1) Record affirmatively showed that life of no human being was in danger, no one being in engine room.

(2) Rule has no application where party attempting rescue of another is characterized by reckless conduct.

(3) Undisputed proof shows that when decedent entered engine room, everything which could have happened had already happened.

(4) No justification for decedent's going into engine room as the only way to cut off steam and usual way to shut down machinery was by cutting off steam at power plant, and the explosion which occurred caused that to be done almost instantly at the power plant.

Wagner v. International R. Co., (N.Y.) 19 A.L.R. 10;

Norris v. A. Sea Coast Line, 27 L.R.A. (N.S.) 1069; 60 L.R.A. 460; Eckert v. Long Island R. Co., 43 N.Y. 503, 3 Am. Rep. 721; Eversole v. Wabash R. R. Co. (Mo.), 155 S.W. 419; Morris v. Lake Shore, etc., R. Co., 148 N.Y. 186, 42 N.E. 579; Condiff v. Kansas City, etc., R. Co., 45 Kans. 260, 25 P. 562; Cook v. Johnston, 58 Mich. 437, 55 Am. Rep. 703; Seale v. G. C. & S. F. R. Co., 65 Tex. 274, 57 Am. Rep. 602; Jackson v. R. R. Co. (Me.), 14 A. 735; Johnson v. Terminal R. Ass'n, 8 S.W. (2) 891, certiorari denied by S.Ct. United States, 73 L.Ed. 181.

Instructions 1 and 2 given for appellee are erroneous as they submit to the jury question of fact as to whether or not decedent went into engine room for protection of human life, when record affirmatively shows no human life in danger. Instructions must be predicated on proof shown by record.

So. R. Co. v. Lanning, 83 Miss. 161, 35 So. 417; Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Yazoo, etc., R. Co. v. Dyer, 102 Miss. 870, 59 So. 937; McLeod Lbr. Co. v. Anderson Merc. Co., 105 Miss. 498, 62 So. 274; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 284; Yazoo R. Co. v. Aden, 106 Miss. 860, 64 So. 790; Newman Lbr. Co. v. Dantzler, 107 Miss. 31, 64 So. 931; Western Union Tel. Co. v. Robertson, 109 Miss. 775, 69 So. 680; Collins v. Union, etc., Bank, 110 Miss. 506, 70 So. 581.

Peremptory instruction should have been given because if decedent wanted to cut off the engine there was a perfectly safe method of doing so.

Rose v. Pace, 109 So. 861, 144 Miss. 375.

The trial judge erred in refusing to instruct the jury that decedent was guilty of contributory negligence.

Y. & M. V. R. R. Co. v. Williams, 74 So. 835, 114 Miss. 236.

Reily & Parker, of Meridian, for appellee.

One who, observing another in peril, voluntarily exposing himself to the same danger in order to protect the other, or to save his life, is not guilty of such contributory negligence which will as a matter of law prevent him from recovering for injuries sustained in effecting the rescue against the person through whose negligence the perilous condition has been brought about, provided the rescue is not negligently or rashly made, and the rescuer himself did not bring about the dangerous situation.

Norris v. Atlantic Sea Coast Line, 27 L.R.A. (N.S.) 1069.

The proximate cause of injury to one who voluntarily interposes to save the lives of persons imperiled by the negligence of another is the negligence which causes the peril.

Maryland Steel Co. v. John Marney, 42 L.R.A. 842; Perfich v. Laetonia Min. Co., 137 N.W. 12; Bond v. B. & O. R. R. Co., 5 L.R.A. 201; Gibney v. State, 19 L.R.A. 365.

Where one person is exposed to peril of life or limb by the negligence of another, the latter will be liable in damages for injuries received by a third party in a reasonable effort to rescue the one so imperiled. The rule applies of course in favor of an employee who has been injured in attempting to rescue another from a peril created by the employer. The rescuer must not however, have acted rashly or exposed himself unnecessarily to danger.

Arthur Wagner v. International R. R. Co., 19 A.L.R. 1, 4 and 35; 19 R. C. L. 655.

Currie & Currie, of Hattiesburg, for appellee.

It is for the jury to say, under all the circumstances of the case, whether the conduct of a person injured in an attempt to save another from danger or to avert the threatened injuries to property, is to be deemed so rash and reckless as to defeat a right of recovery; a question to be determined upon all the evidence in the light of proper instructions from the court.

Watson on Damages for Personal Injuries, page 123, par. 106; Condiff v. Railroad Co., 45 Kan. 256; Railroad Co. v. Langerdorf, 48 Ohio St. 316; Linnehan v. Sampson, 126 Mass. 506; Eckbert v. Railroad Co., 43 N.Y. 503.

Where the question involved is the right of a party to recover for personal injuries alleged to have been sustained in an effort to escape a threatened danger, whether the person injured reasonably apprehended the danger referred to is a question for the determination of the jury.

Watson on Damages for Personal Injuries, page 108, par. 91; Ellick v. Wilson, 58 Neb. 584, 79 N.W. 152.

It is also for the jury to say, whether, in the light of all the circumstances as they appeared at the time, the plaintiff's course was that of an ordinarily prudent and cautious man, making due allowance for the nature and imminence of the danger.

Watson on Damages for Personal Injuries, pages 102, 103, 108, pars 87 and 91; Central, etc., Ry. Co. v. Roach, 64 Ga. 635; Missouri, etc., R. Co. of Texas v. Rogers (Tex. Sup.), 40 S.W. 956; San Antonio Ry. Co. v. Peterson (Tex. Civ. App.), 49 S.W. 924; Railroad Co. v. Ashcraft, 48 Ala. 15; Dunham Touring, etc., Co. v. Dandelin, 41 Ill.App. 175; Edgerton v. O'Neill, 4 Kan.App. 73, 84; Gannon v. N. Y., etc., R. Co., 173 Mass. 40; Purcell v. St. Paul City R. Co., 48 Minn. 138; Wilson v. Railroad Co., 26 Minn. 278; Buel v. Behsmann, 30 N.Y. 314; Twomley v. Railroad Co., 69 N.Y. 158; Scotti v. Behsmann, 30 N.Y.S. 990; Railroad Co. v. Aspell, 23 Pa. St. 147; Bryant v. Railroad Co. (Tex. Civ. App.), 46 S.W. 82; International, etc. , R. Co. v. Bryant (Tex. Civ. App.), 54 S.W. 364; Honey v. Pittsburg, etc., Ry. Co., 38 W.Va. 570; Brown v. Ry. Co., 54 Wis. 358; St. Joseph, etc., R. Co. v. Hedge, 44 Neb. 448; Burdick's...