Mississippi Central R. R. Co. v. Lott

Citation80 So. 277,118 Miss. 816
CourtUnited States State Supreme Court of Mississippi
Decision Date16 December 1918
PartiesMISSISSIPPI CENTRAL R. R. CO. v. LOTT

October 1918 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

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

Suit by Berry Lott against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals.

Appellee, as plaintiff in the court below, instituted this action against appellant to recover damages claimed to have been sustained through the negligence of defendant from alleged defective "grabiron" on a freight car. Appellee was employed by the J. J. Newman Lumber Company, a corporation owning and operating a large plant at Sumrall, Miss., for the manufacture and shipment of lumber. The business of the lumber company constituted the chief enterprise in the town of Sumrall, situated on the line of the defendant carrier, and the lumber company, in the prosecution of its business, made requisition for, and made use of, a large number of cars for the shipment of its products. There is testimony tending to show that appellant installed for the accommodation of the lumber company abundant facilities, and that it furnished a switch engine that was used in switching cars on its side tracks, and that a special crew was regularly engaged in spotting empty cars and picking up and carrying out to the main line loaded cars, and in doing any other necessary switching. The testimony tends to prove that the employees engaged in the switching were paid by the lumber company, but that they did any switching that the railroad company required to be done on the private side tracks of the lumber company, and on the main siding of the defendant carrier at that point; that it was the business of the railroad company to deliver to the lumber company cars wanted for the loading and shipment of lumber, and to pick up and remove the loaded cars when they were ready for shipment; that just prior to the injury complained of the lumber company made requisition for cars, and in pursuance of this requisition appellant furnished for loading the two cars subject to inquiry in this suit. There was a siding adjacent to and parallel with the main line of the railroad, and the plant and lumber yards of the J. J. Newman Lumber Company were located along by and near this siding. Appellant furnished to the shipper, the Newman Lumber Company, two cars designated as LV-2763, referred to as an automobile car with end doors, and car IRC-18775, which at the time of the injury was coupled to the said automobile car. These cars were loaded by the shipper, and then picked up and switched to the siding. It was the business or duty of plaintiff to assist in loading lumber into the cars and to prepare loaded cars for shipment. At the time of the injury these cars had been transferred from the lumber yards to the siding, but had not been accepted by defendant for transportation. Before they were accepted, it was discovered that one of the end doors of the automobile car had been forced open by the switching, and the lumber was protruding from the end. Plaintiff's foreman thereupon ordered plaintiff to go to the siding to "patch" or repair the broken door and get it in proper condition for shipment. In performing this service, which it appears was in the usual line of employment, the plaintiff, according to his testimony, found it necessary to go up the ladder situated on the end of the IRC car, and in attempting to nail the broken door on the adjacent car, plaintiff found it expedient to stand with one foot on top of the car he was working on, and to place the other foot on top of the "stirrup or hand hold of this other car," and in doing so, as plaintiff placed his foot and weight on the ladder, it pulled loose from the wood and threw, or permitted, the plaintiff to fall straight down between the two cars in a way to strike his back violently on the drawhead of the car, and thereby seriously to shock and injure the plaintiff, to such an extent that he lay practically motionless for thirty or forty minutes before the crew of the switch engine picked him up and carried him to a physician's office. There is testimony tending to show that the wood, into which the metal grabiron was driven or fastened, was decayed, and that when the plaintiff placed his foot on the top round of this ladder it easily pulled out from the rotten wood, and that this decayed condition could have been ascertained by reasonable inspection of the car. Both cars were received by appellant from the Illinois Central Railroad at Brookhaven, a point of intersection between the defendant carrier and the Illinois Central, and both cars after they were loaded, were returned to the Illinois Central at Brookhaven for further shipment over the line of the Illinois Central. These cars did not belong to appellant but are referred to as "foreign cars" and were returned loaded to the carrier from which they were received as empties. Appellant had a car inspector at Brookhaven, but this car inspector had died prior to the trial of this case, and his records, according to the contention of appellant, could not be located, and for that reason were not introduced.

For the plaintiff, there is testimony tending to show that appellant would not have received the loaded automobile car with lumber protruding from the broken door, and that it was customary for the employees of the shipper not only properly to load the lumber in the car but properly to fasten the doors; that it was not only customary, but necessary, for the shipper in this instance to repair the broken door; that the plaintiff was ordered to do this work, and was in the line of his employment in performing the service which occasioned his injury, and that there was in fact a defective grabiron which precipitated the plaintiff across the drawhead and caused serious and permanent injuries, the extent of which was fully developed by the proof.

For the defendant there was testimony tending to show that the grabiron was not defective, that plaintiff was an employee of the lumber company, and that the latter had settled with appellee prior to the filing of this suit for a consideration of two hundred and seventeen dollars, and some proof tending to show that the plaintiff was not so seriously injured as he claimed to be, and that on one or more occasions he had made claims for other injuries alleged to have been received through the negligence of other companies.

Plaintiff's testimony tended to show further that prior to the injury he weighed on an average of one hundred and fifty to one hundred and sixty pounds, and that he was a strong, healthy, and industrious laborer, able to perform and actually engaged in the hard labor of loading lumber from the dry kilns and plant of the lumber company onto the cars, and in doing so to lift heavy loads for ten hours a day, six days in the week; that he was a married man with a wife and one child dependent upon his physical labor for support; that prior to the injury he did not suffer from any sickness or accident of any kind, and had no lung trouble whatever; but as a result of the injury plaintiff was required to stay in bed five weeks and three days immediately following the accident, and was under constant care and treatment of physicians; that he was partially paralyzed; that he sufficiently recovered at one time to get out of bed and do some walking with the assistance of a stick, but was soon again prostrate; that his paralysis returned, necessitating confinement in bed for nine weeks, and that after the lapse of this time plaintiff, upon advice of his physician, was removed from Sumrall to a hospital in Hattiesburg, where he remained seven days; was then carried back home, and ever since has been a constant sufferer from pain, partial paralysis, and tuberculosis; and while in bed he constantly suffered pain.

On the trial of the case there was undisputed testimony that plaintiff had a pronounced case of tuberculosis of the lungs, and this disease plaintiff and his physician claimed to be the proximate result of the injury sued for. At different times plaintiff was attended by Dr. Bryant, Dr. Breuck, Dr. Anderson, and Dr. Ross some of whom as witnesses detailed the injuries of the plaintiff, and Dr. Bayne, an expert on tuberculosis of the lungs, testified that in all probability there was casual connection between the injury to the back and the tuberculosis, explaining on the witness stand that:

"Any injury or any acute disease that lowers a man's vitality or normal resistance makes a man more liable to contract tuberculosis, that is, he would not have contracted it at all; that every man that breathes the tubercular bacilli in his lung does not have tuberculosis, if he is in good health, but following a injury, or following any acute disease, or anything that lowers his normal resistance, it renders the soil fertile, and then he takes the disease when otherwise he would not."

This witness had made a microscopic examination of the sputum, and found Mr. Lott suffering with a pronounced case of tuberculosis, and said "the probabilities are that it was the result" of the serious injuries to plaintiff's back.

Dr Breuck also testified that he attended and prescribed for Mr. Lott; that in doing so he was associated with Dr. Bryant; that he was called in by Dr. Bryant because the plaintiff had "some peculiar affliction he wanted me to see;" that Mr. Lott in fact had tuberculosis at the time the case was tried; and that the witness attributed "his condition at this time to that injury." The testimony of Dr. Breuck as to plaintiff's tuberculosis and its connection with the injury was not objected to by the defendant, but, on the contrary, ...

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