Mobile, J. & K.C.R. Co. v. Hicks

Decision Date20 April 1908
Docket Number12,839
Citation91 Miss. 273,46 So. 360
CourtMississippi Supreme Court

FROM the circuit court of Newton county, HON. GEO. H. ETHRIDGE Special Judge.

Mary A Hicks and her children, appellees, as the widow and children of Ray Hicks, deceased, sued the Mobile, Jackson & Kansas City Railroad Company, appellant, for the wrongful killing of deceased while in the service of the defendant as a section foreman. Mrs. Hicks also sued as administratrix of her deceased husband for damages sustained by him, and, the two suits having been consolidated, a trial was had in the circuit court, resulting in a judgment for plaintiffs in the sum of $ 7,500; from which the defendant appealed to the supreme court.

The opinion of the court states the controlling facts of the case.


May Flowers & Whitfield, for appellant.

To recover damages arising out of the occurrence two suits were filed -- one by the administratrix, and another by the widow and children. The administratrix bases her claim upon the allegation that the wreck Was caused by the negligence of the engineer in charge of the locomotive (1) in running at too great a speed, and (2) in trying to check the train suddenly when it was running at the high rate of speed; it being averred that the deceased and the engineer were in different departments of labor and engaged about different pieces of work. The second declaration, that by the widow and children is based upon the alleged negligence of the master itself in six particulars. The master is charged to have been negligent (1) in "knowingly employing and putting in charge of said train an inexperienced, incompetent, unskillful, and reckless engineer, as the result of which the train was run at a dangerously rapid rate of speed, especially dangerous in view of the condition of the track"; (2) "in knowingly employing and putting in charge of the train an inexperienced, incompetent, and reckless engineer, as a result of which the freight train, running at a very rapid rate of speed, was through the unskillfulness of the engineer suddenly attempted to be checked"; (3) "in allowing the box car which first jumped from the track to be equipped with trucks of an improper gauge, so that the wheels did not properly fit the tracks"; (4) "in allowing the flange of the wheel of the box car which first jumped from the track to become worn, defective, and unsafe"; (5) "in fixing a schedule for said train, which in view of the condition of its railroad was excessive and dangerous"; and (6) "in that the car which jumped first from the track was not equipped with good and sufficient brakes and brake shoes, so that its motion and speed could be controlled, and because the said train and said car had not been properly equipped with air brakes, so that the speed and motion of the train could be regulated." It will be observed later that the testimony was confined altogether to allegation No. 1 in the declaration filed by the administratrix, to the effect that the train was being run at a reckless and dangerous rate of speed by the engineer. There are several important questions involved in this case, and they are presented by the record in every way that counsel for this appellant knew how to raise them. They will be discussed without regard to the manner or order in which they were raised.

(1) This casualty in which Mr. Hicks lost his life was an accident pure and simple. It was a thing that could not have been foreseen. If the company or one of its servants was negligent, this result was not a consequence of such negligence that could or should have been anticipated. The negligence, if any there was, was not the probable nor proximate cause of the injury. If the law requires a railroad company to equip its cars carefully and maintain safe tracks, and to employ skillful and efficient operators, and requires such operators to carefully handle the trains and to run at safe rates of speed, such laws are made for the protection of persons who ride on the trains or who may be necessarily on the tracks. Such laws are not made for the protection of people who may be standing near the tracks, and who, by violation of such laws, might be injured by derailed trains. A proximate cause of an injury is one which should be expected to bring about such injury, and which, in the ordinary course of things, does result in such injury. This, perhaps, is the only instance in the history of railroad operation in Mississippi where one was killed by a derailed train. The people on the train are at the mercy of the engineer. The people on the other trains using the same track are at his mercy. People who are necessarily on the track may be dependent upon his careful performance of his duties. It is for their protection that the law requires him to be skillful and careful. This railroad is about four hundred miles long. It could never have been anticipated that a train running from one end to the other would jump the track at the point where Mr. Hicks happened to be standing in Newton county and kill him.

(2) The suit by the administratrix is based upon the alleged negligence of a fellow servant in another department of labor. The deceased was a section foreman. He was with his gang working on the track, and had stopped for dinner. He was sitting or standing near the track, when he was not at work, and part of a passing train was derailed, and a car which had jumped the track fell on him and killed him. His administratrix sues on the ground that the engineer running the train was guilty of willful carelessness and negligence and recklessness, in that he was running the train at a rate of speed that was very dangerous. She says that it was especially dangerous because of the fact that the track was new and not ballasted, and that the said engineer committed another act of negligence in attempting to check the speed of the train very suddenly. It is charged that the sudden checking of the train when it was running at such a high rate of speed caused the box car to jump from the track, pulling with it two or three other box cars, one of which fell on the said Hicks, deceased. The suit is based upon § 193 of the Constitution, as it appears in § 3559 of the Annotated Code of 1892.

We assume here that 3559 of the Code (for the purposes of this suit) is in force as it was originally written in the Code of 1892. It was attempted to amend it by ch. 87, p. 97, Laws of 1896, and by ch. 66, p. 84, Laws of 1898. The last amendment -- that is, ch. 66, p. 84, Laws of 1898 -- was declared unconstitutional by the supreme court in Ballard v. Oil Company, 81 Miss. 507; 34 So. 533; 62 L. R. A., 407; 95 Am. St. Rep., 476. This means, too, that ch. 87, p. 97, of the Laws of 1896, is also unconstitutional. The two acts amending § 3559 of the Code having been declared null and void, the said section stands as it was before these attempted amendments. Chapter 66, p. 84, of the Laws of 1898, was declared unconstitutional as being in violation of article fourteen of the Constitution of the United States, which prohibits the states from denying to any person within its jurisdiction the equal protection of the laws. The two grounds on which the court held that the said act denied equal protection of the laws to certain persons were that "it imposes restrictions upon all corporations, without reference to any difference arising out of the natures of their businesses," and "it imposes restrictions upon all corporations . . . which are not imposed upon natural persons." The said act of 1898 undertook to extend the fellow servant rule to the employes "of any corporation." The court said, in the first place, that it would not be giving all corporations the equal protection of the law to apply the strict rule provided by § 193 of the Constitution to them in their relations with their employes, unless they were all engaged in the same or similar kind of business; that all corporations do not conduct the same kind of business, and occupations cannot be classified reasonably, and for purposes of special legislation, by reference to the character of the persons owning and conducting them. One corporation may be engaged in a dangerous business, and another in a business which requires employes to run no risk whatever. The degree of care which a corporation operating a dangerous business is required to exercise might not reasonably be required of one operating another business not necessarily dangerous at all. The reasonableness of the fellow servant rule cannot depend upon the character of the employer whether a natural or artificial person. To put all corporations in the same class and provide a stringent rule to be applied to all of them is unjust and unequal legislation. The court accepted as being sound the holding of those courts which have declared that every classification for the purpose of special legislation of this kind must be based on "some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed." The court held that the fellow servant rule cannot be extended to corporations as such while at the same time it is not made to apply to individuals engaged in the same kind of business. Our court rejected the holding of some of the courts to the effect that corporations, being artificial persons created by the state, may be forced to accept any legislation which the state sees fit to impose upon them.

Since the court has declared the act of 1898 unconstitutional on the ground that the fellow servant rule cannot be extended to corporations in general, without extending it also to individuals engaged in businesses of the same kind, it is impossible to see how § 3559...

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