Louisville, New Orleans & Texas Ry. Co. v. Petty

• Decision Date: 10 March 1890
• Citation: 67 Miss. 255,7 So. 351
• Parties: LOUISVILLE, NEW ORLEANS & TEXAS RY. CO. v. J. W. PETTY
• Court: Mississippi Supreme Court

7 So. 351

67 Miss. 255

LOUISVILLE, NEW ORLEANS & TEXAS RY. CO. v. J. W. PETTY

Supreme Court of Mississippi

March 10, 1890

FROM the circuit court of Wilkinson county, HON. RALPH NORTH Judge.

Appellee Petty, a brakeman in the employ of the Louisville, New Orleans & Texas Railway Company, brought this suit in the court below, to recover of said company damages for an injury received by him while in the discharge of his duties as brakeman on a south bound freight train November 8, 1888. The injury occurred about sixty miles south of Vicksburg, between that place and Wilson, La., at a point where there is quite a heavy grade. The testimony shows that there was difficulty in getting over this grade, and the engine was slipping and jerking. Appellee was on top of the cars and attempted to set some of the brakes, to prevent the train from running back. Just as he took hold of a brake, the engine gave a jerk, the coupling of one of the cars gave way, and the train broke in two. The sudden movement thus caused, threw the appellee to the ground, and he was seriously injured. It was shown that the slipping and jerking was caused by the want of a sufficient quantity of sand in the sand-box on the engine. As the engineer was unable to sand the track, the driving wheels of the locomotive would at times revolve on the track without moving the train.

At Vicksburg on the line of this road the company has shops, and a round-house, where trains exchanged engines. The shops and roundhouse were under the general supervision of a master mechanic. It was shown that there was a yard engineer or "hostler," whose duty it was to take care of the engines in the round-house, supply them with fuel, water sand and other needed things; and when a train would come in and disengage its engine, he would take out a locomotive supplied with all the necessary equipments for a run, and attach it to the train, at which time the road engineer would take charge of it. It does not distinctly appear who was at fault for the want of sand on the engine when this accident occurred, but it was shown that the engineer complained of the want of sand in the box when only about twenty-three miles out from Vicksburg. It was further shown that sand is a necessary thing to be used in running trains, and that it is the duty of the road engineer when he takes charge of a locomotive to see to it that the same is supplied with all necessary things, and if it is not so supplied to report the fact and refuse to go out.

The other facts necessary to an understanding of the case are stated in the opinion of the court.

At the conclusion of the evidence the defendant asked the court to instruct the jury to find in its favor. This was refused. At the instance of plaintiff, the court instructed the jury in effect that it was the duty of the railway company to see that the engine was supplied with sand; that this duty could not be delegated; that the servant whose duty it was to see that the engine was so supplied was as to that an agent of the master, and not a fellow-servant with plaintiff, and that, if the injury was caused by the want of a sufficient supply of sand, the plaintiff was entitled to recover.

Verdict and judgment in favor of plaintiff for $ 2500. After motion for a new trial overruled, defendant appealed.

Reversed and remanded.

W. P. &amp J. B. Harris, for appellant.

It seems a new doctrine that the company is personally present in supplying fuel, water, sand and the like. Whoever may have been at fault, the person was a fellow-servant with the plaintiff, and he cannot recover; he has builded on sand.

The master machinist has to do only with the construction and repair of machinery. Other servants look after and provide suplies. The company must furnish a safe track, safe cars, and suitable material and supplies: the use of these is committed to servants. It is immaterial that the servants are in different grades and different groups--all are fellow-servants. Howd v. R. R. Co., 50 Miss. 178; R. R. Co. v. Hughes, 49 Ib. 283; R. R. Co. v. Doyle, 60 Ib. 977; McMaster v. R. R. Co., 65 Ib. 265; 46 Mich. 268; 135 Mass. 201; Whittaker's Smith on Neg. 139; Cooley on Torts, 545; 2 Rorer on Railroads, § 830.

It seems like cutting up the doctrine into "fantastic fribbles" to hold the "hostler," and the road engineer vice principals. On this point see Patterson's Accident Law, 300-306. The burden is on plaintiff as to imperfections or insufficiency of machinery and supplies. 2 Rorer on Railroads, §§ 1200, 1201; 22 Ala. 294; 42 Ib. 672. Whether the "hostler" or engineer was a fellow-servant with the plaintiff was a question of law. Therefore the court should have instructed the jury to find for defendant.

D. C. Bramlett and H. C. Capell, for appellee,

Filed a lengthy brief making the following points:--

1. The verdict of the jury was sustained by the evidence.

2. The injury to plaintiff was the direct result of the failure to have the engine provided with sand.

3. To render the machinery and implements suitable and safe, it is necessary that an engine shall be provided with the requisite amount of sand. These propositions are sustained by the undisputed facts.

4. The only real question is whether the appellee as a servant of the company is entitled to recover damages for injuries sustained while in the performance of his duty. We maintain that he can. The round-house and shops at Vicksburg are in charge of the master mechanic. The duties of the "hostler" are confined to the yard. He is required to provide the engine with sufficient fuel, sand and the like. The road engineer has nothing to do with this. The master must...