Mississippi Export R. Co. v. Temple

• Decision Date: 17 January 1972
• Docket Number: No. 46482,46482
• Citation: 257 So.2d 187
• Parties: MISSISSIPPI EXPORT RAILROAD COMPANY v. John R. TEMPLE.
• Court: Mississippi Supreme Court

Page 187

257 So.2d 187

MISSISSIPPI EXPORT RAILROAD COMPANY v. John R. TEMPLE.

No. 46482.

Supreme Court of Mississippi.

Jan. 17, 1972.

Williams S. Murphy, Lucedale, for appellant.

H. Bernard Gautier, Pascagoula, for appellee.

RODGERS, Presiding Justice:

This is a personal injury suit. It was filed by the appellee John Temple against the Mississippi Export Railroad for damages sustained because of an accident alleged to have occurred as the result of the negligent operation of a train by the railroad company. The plaintiff John Temple obtained a judgment against the railroad company and it has appealed to this Court.

At the time of the accident the appellee had been for many years an employee of International Paper Company, as a 'car bracer'. His job was to prepare the trucks and railroad boxcars for loading. He cleaned out the trucks and railroad boxcars. He then nailed small strips of wood on the floor and sides of the boxcars so that the paper manufactured by International Paper Company could be stacked on these strips to prevent damage to the paper product.

The injury to the plaintiff occurred in the loading dock area. This area was used to load the finished paper product into the freight cars and automobile trucks. The area consisted of a five or six hundred-foot-long loading dock under a shed. Two sets of railroad tracks ran along under the shed by the loading dock. At the end of these railroad tracks there were iron obstruction blocks called 'stoppers'. The purpose of these 'stoppers' was to stop the train at the end of the track. Below and beyond the end of the tracks was an area where trucks were backed into the dock for loading. The injury occurred in the area beyond the end of the tracks where the trucks were being prepared for loading.

On the evening of January 28, 1969, at seven o'clock the railroad crew was engaged in placing or 'spotting' freight cars along the two tracks under the shed adjacent to the 'loading dock' so that the freight cars could be loaded with paper and moved out for shipment.

The 'railroad crew' consisted of a conductor, an engineer, a 'head brakeman' and a 'tail brakeman'. Each member of the crew had a two-way radio for his use in operating the train. At the time of the accident the conductor was not on the train, nor was he in a place where he might have relayed signals from the brakeman to the engineer. The crew was operating the train so that the engine was pushing a string of boxcars and this prevented the engineer from seeing down the track under the shed. The tail brakeman was walking along at the forward moving end of the string of boxcars. The head brakeman was riding the back of the engine and was not in a place where he could observe signals from the tail brakeman; nor could he have relayed visual signals to the engineer. Thus, it will be seen the only available method of communication between the brakeman and the engineer was the two-way radio in the hands of the brakeman at the forward end of the moving train. The radio had been operating properly during the afternoon and was found to be operating just before the train went under the shed at the loading dock.

As the train moved along the loading track toward the 'stoppers' the appellee was observed going along the track with an armload of strips used to prepare the trucks for loading. The tail brakeman, who was walking along by the moving train, called to the appellee so as to warn him of the approaching train. The appellee quickened his pace and passed beyond the tracks and 'stoppers' to the area where the trucks were being prepared for loading.

Before the train reached the end of the tracks, the tail brakeman became aware that the engineer was not stopping the train in compliance with his radio signal. He had not checked with the engineer since the train had moved under the loading dock. When he became conscious that the train would not stop, he ran toward the engine waving his lantern and 'yelling'. He did not warn the appellee that the train was out of control and would strike the 'stoppers' at the point where he was working. The brakeman said he 'almost panicked'. The train moved on toward the end of the track. It struck the 'stoppers' and the wheels stopped but the boxcar broke apart and continued on in the direction the train was moving. It struck the appellee breaking his right arm.

The appellant contends that the trial court was in error in failing to grant a peremptory instruction for the defendant railroad at the conclusion of all of the testimony because it is said the plaintiff failed to have proven any of the grounds of negligence based on the declaration.

It is argued that the plaintiff alleged that the defendant failed to have given adequate warning of the approach of the train when it is said that the plaintiff admitted that the brakeman hollered at him as the plaintiff went along between the tracks. This is correct, but it is also true that the testimony shows that the plaintiff heeded this warning and walked rapidly to his place of work beyond the 'bumpers', a place where he had a right to be and which was believed to be a safe place. The brakeman, however, did not warn him that the train was about to strike the bumpers and that an impending wreck was about to occur, although he knew this about a car length before it occurred. The reason for the failure of the brakeman to give this warning was that he was 'about to panic'. We think that the jury had testimony on which it could have concluded that the agent of the railroad knew of the impending danger and he failed to give the plaintiff the last clear chance to escape injury.

We are of the opinion that there was sufficient evidence on which to submit the issues to the jury.

The appellant argues, however, that in order to hold appellant for the injury to the appellee that the plaintiff should have offered testimony to show that the railroad could have reasonably anticipated that the radio would not function. The record shows, however, by the testimony of the engineer that the radio had failed before. The brakeman had a signal lantern but the engineer could not see him and there was no other agent to relay the lantern signal to the engineer. The brakeman kept talking on the radio and did not check to discover whether or not the engineer was receiving the information while he was 'talking him down'.

The appellant also contends that it was entitled to a peremptory instruction to two affirmative defenses offered by the defendant railroad: (1) The appellee, plaintiff, assumed the risk of being struck by the train; (2) The members of the switch crew operating the train involved were loaned servants to the paper company, the plaintiff's employer, and the railroad was not liable for the negligent acts of the switch crew because they were fellow servants of the paper company.

It is true that this Court has held that the common law rule of assumption of risk doctrine is in force in this state except as between master and servant. Saxton v. Rose, 201 Miss. 814, 29 So.2d 646 (1947).

In Saxton, supra, we pointed out, however, that before one may be charged with 'assumption of the risk' he must voluntarily and knowingly place himself in a dangerous position appreciating that injury is likely to occur to him because of the assumed situation. In other words, he ventures himself into a known danger fully understanding the consequences. Acts of venturousness must have been the proximate cause of his injury. Otherwise, such an act, though damgerous, would only constitute contributory negligence where his injury was caused by another.

The common law rule that an employee while working for one person is directed by his employer to do a special job for another while, at the same time, retaining his employment with his general employer is sometimes referred to as the 'loaned servant doctrine'. Such a relationship requires that the employee submit himself to the direction and control of the other employer with respect to the work to be done. Sawmill Construction Co. v. Bright, 116 Miss. 491, 77 So. 316 (1918).

If, however, the original employer retains control over the means and method of the work done, the employee does not become a 'loaned servant' although he is temporarily working on the job of another employer. The borrowed employer must have exclusive control and direction over the particular work in progress. Rodicker v. Illinois Central Railroad Co., 236 So.2d 414 (Miss.1970); St. Louis-San Francisco Ry. Co. v. Porter, 211 So.2d 530 (Miss.1968); Index Drilling Co., Inc. v. Williams, 242 Miss. 775, 137 So.2d 525 (1962).

The test is whether, in the particular service which he is engaged to perform, he continues liable to the directions and control of his master, or he becomes subject to that of the party to whom he is lent or hired. Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed 480 (1909); Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078 (1904); Higgins v. Western Union Tel. Co., 156 N.Y. 75, 50 N.E. 500 (1898); Coughlan v. Cambridge, 166 Mass. 268, 44 N.E. 218 (1896). See also I.C.R.R. v. Humphries, 170 Miss. 840, 155 So. 421 (1934); Matthews v. New Orleans & N.E.R. Co., 93 Miss. 325, 47 So. 657 (1908); O'Neal v. Refuge Cotton Oil Co., 88 Miss. 617, 41 So. 67 (1906). A servant of an independent contractor is not a fellow servant of the employees of the principal although they are engaged in a common work. Louisville, N.O. & T.R. Co. v. Conroy,63 Miss. 562 (1886).

The facts of the instant case are very similar to those in the case of Geraghty v....