Louisville & N. R. Co. v. Russell

• Decision Date: 21 November 1932
• Docket Number: 30211
• Parties: LOUISVILLE & N. R. Co. v. RUSSELL
• Court: Mississippi Supreme Court

144 So. 478

164 Miss. 529

LOUISVILLE & N. R. Co. v. RUSSELL

No. 30211

Supreme Court of Mississippi

November 21, 1932

Division B

1. MASTER AND SERVANT.

Under federal act employees assume all ordinary risks incident to their employment (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

2. MASTER AND SERVANT.

Under federal act employee performing work in manner known to be dangerous, assumes risk incident thereto (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

3. MASTER AND SERVANT.

Section hand who knowing danger hurriedly tamped slag under railroad ties on orders of alleged foreman under fear of losing position, assumed risk and could not recover for injury to eye struck by slag (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

HON. W A. WHITE, Judge.

APPEAL from circuit court of Hancock county, HON. W. A. WHITE Judge.

Suit by Charley Russell against the Louisville & Nashville Railroad Company. Judgment for plaintiff and defendant appeals. Judgment reversed and judgment rendered for defendant.

Reversed and rendered.

Smith &amp Johnson, of Mobile, Alabama, for appellant.

This suit is brought under the Federal Employers' Liability Act, and it was shown that at the time the plaintiff was injured he was engaged in interstate commerce. Where the Federal law applies, as it does in this case, all state laws upon the subject are superseded.

Lindgren v. United States, 281 U.S. 38; Chesapeake & Ohio Railway v. Stapleton, 279 U.S. 587; New York Central v. Winfield, 244 U.S. 147; Erie R. R. Co. v. Winfield, 244 U.S. 170; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501.

Not only does the Federal law apply to the exclusion of the state law, but what constitutes assumption of risk is determined by the common law as interpreted and applied in the Federal courts.

Southern Railway Co. v. Gray, 241 U.S. 333, 339; Chesapeake & Ohio Railway Co. v. Kuhn, 52 S.Ct. 45, 76 L.Ed. 118; Seaboard Air Line Ry. v. Horton, 233 U.S. 492; Central Vermont Railway Co. v. White, 238 U.S. 507; Great Northern Railway Co. v. Wiles, 240 U.S. 444.

The plaintiff's own testimony makes out a clear case of assumption of risk, and when this is done, it is the duty of the court to give the peremptory instruction requested by the defendant, and not to submit the case to the jury.

Delaware, etc., R. R. Co. v. Koske, 279 U.S. 7, 12; Butler v. Frazee, 211 U.S. 459, 467; Chesapeake & Ohio Railway Co. v. Kuhn, 52 S.Ct. 45, 76 L.Ed. 118.

In cases like this, where damages are claimed under the Federal Employer's Liability Act (45 U.S.C. A. sections 51-59), defense of the assumption of the risk is permissible, and where the undisputed evidence clearly shows such assumption the trial judge should direct a verdict for the defendant. Moreover, in proceedings under that act, wherever brought, the rights and obligations of the parties depend upon it and applicable principles of common law as interpreted and applied in the Federal courts.

Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 508; Chesapeake & Ohio Railway Co. v. Kuhn, 52 S.Ct. 45, 76 L.Ed. 118; Pryor v. Williams, 254 U.S. 43; New York Central Railroad Company v. Winfield, 244 U.S. 147; Delaware, etc. R. R. v. Koske, 279 U.S. 7; Toledo, St. Louis & Western R. R. Company v. Allen, 276 U.S. 165; Seaboard Air Line Railway Co. v. Horton, 233 U.S. 492.

A servant assumes the ordinary risks and dangers his employment and the extraordinary risks and dangers which he knows and appreciates. Neither the order of a vice-principal to the servant to work in a dangerous place, or in a dangerous way, nor his assurance of the servant's safety, nor the servant's fear of losing his job, will release the servant from his assumption of the risk and danger where they were readily observable and were known and appreciated by him, unless the vice-principal makes a promise to remove them as an inducement for the servant's continuance in the service.

Union Pacific Ry. Co. v. Maroni, 246 F. 916, 924; Washington Terminal Co. v. Sampson, 289 F. 577, 581; Hallstein v. Pennsylvania. Ry. Co., 30 F. 594; Hannett v. Victor-American Fuel. Co., 236 F. 526; Chicago B. & Q. Ry. Co. v. Shalstrom, 195 F. 725; Anderson v. Winston, 31. F. 528; Southern Ry. Co. v. Logan, 138 F. 725; Chicago, Great Western Ry. Co. v. Crotty, 141 F. 913; Reed v. Stockmeyer, 74 F. 186.

Emile Gex, of Bay St. Louis, for appellant.

An employee of a railroad doing interstate commerce business, continuing employment and performing usual duties with knowledge of danger by reason of having to do dangerous work with material furnished him, even though he has made a complaint, assumes the risk of injury.

Mobile & Ohio Railroad Co. v. Clay, 156 Miss. 463, 125 So. 819, 51 S.Ct. 24.

But it is said again that the "Superior Officer" ordered the deceased into the place of danger, and he was bound to obey, and therefore appellants should recover. But this rule is always qualified by the exception that there is no liability if the danger is such that no prudent man would have encountered it. In view of what we have stated, the declaration shows that deceased knew that the risk was so obviously dangerous that no recovery could be had on this ground.

Truly v. North Lumber Company, 36 So. 4, 83 Miss. 430.

The fact that the order came from the superior officer, if the danger was apparent to the employee, would not give a right of action to the employee.

Chesapeake & Ohio Railway Co. v. Kuhn, 52 S.Ct. 45, 76 L.Ed. 118.

Neither the order of a vice-principal to the servant to work in a dangerous place, or in a dangerous way, nor his assurance of the defendant's safety, nor the servant's fear of losing his job, will release the servant from his assumption of the risk and danger where they were readily observable and were known and appreciated by him.

Union Pacific Ry. Co. v. Marone, 246 F. 916; Hannett v. Victor-American Fuel Co., 236 F. 526.

The assumption of risk rests upon the maxim "Volanti non fit injuria" and upon the contract of employment. It rests upon the principle that no legal injury can be inflicted upon one who willingly assumes the known or obvious risk of it, and hence it includes the risk of known or obvious defects and dangers which the master or the foreman directs the servant to incur during the employment, for the latter is as free to decline to obey such an order as he is to decline, to take or to continue in the employment, and where he knows and appreciates the defect and danger as well as the master or foreman, he becomes subject to the maxim, upon the will no legal injury can be inflicted.

Chicago B. & Q. Ry. Co. v. Shalstrom, 195 F. 725; Southern Railroad Co. v. Logan, 138 F. 725.

It is well settled that where a servant knows and appreciates the danger of the act which he undertakes he does not any the less assume the risk of injury, or become chargeable with contributory negligence, as the case may be, because he undertakes it under the direction of the master's representative.

Chicago, Great Western Railroad Co. v. Grotty, 141 F. 913; Derrickson v. Commissioners of Town of Harrington, 138 A. 645; Chicago M. St. P. & P. Ry. Co. v. Busby, 41 F. 617.

By no means, however, is an employee under all circumstances and at all hazards, bound to obey the commands or accept the assurance of the employer. The peril may be so great that no prudent person would chance it. Neither the employer nor his representative has a right to give such an order or assurance; and the employer has no right to act pursuant thereto. And if the employee receive an injury knowing as well as the employer the danger to which he exposes himself, he will not be permitted to recover.

18 R. C. L. 658, section 151; Lowe Mfg. Company v. Payne, 167 Ala. 245, 52 So. 447, 30 L.R.A. (N.S.) 436; Leary v. Boston, etc., Railroad Company, 139 Mass. 580, 2 N.E. 115, 52 Am. Rep. 733; 18 R. C. L. Law, page 703, section 187.

The general rule is that, where the servant accepts or continues in employment, knowing or having equal means of knowledge with the master of the defects and dangers inherent in the employment, he assumes the risk of injury therefrom.

39 C. J. 769, section 970.

Gex & Gex, of Bay St. Louis, for appellee.

Another element that may effect an employee's appreciation of the perils of his employment, and consequently his right of recovery for injuries resulting therefrom, is a command by the employer or his representative to do a particular act, or an assurance that the act may be performed without danger. In any case-- the employee may not set up his judgment against that of his recognized superiors; on the contrary he may rely upon their advice, assurances and commands, notwithstanding any misgivings of his own.

18 R. C. L. 150.

A servant does not assume the risk of injury from the negligence of the master while the latter is personally supervising and directing the work.

39 C. J. 700.

Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable not to the method, but to negligence in pursuing it.

Chesapeake & Ohio Railway Co. v. Proffitt, 241 U.S. 462, 60 L.Ed. 1102; Sundry Creek Co. v. Gray, 238 F. 325; New Deemer Co. v. Wells, 296 F. 688.

By virtue of his contract the servant agrees to obey the orders of the master, and a refusal to do so would involve his dismissal.

Coal & Coke Ry. Co. v. Deal, 231 F. 604.

So where a servant is apprehensive that the place in which he is required to work is dangerous and unsafe, but relies upon the assurance of the foreman that it is safe and is directed by him to proceed, and the servant is injured without any negligence upon his own part, the master is...