Mobile & O. R. Co. v. Clay

• Citation: 156 Miss. 463,125 So. 819
• Decision Date: 27 January 1930
• Docket Number: 28031
• Parties: MOBILE & O. R. CO. v. CLAY
• Court: United States State Supreme Court of Mississippi

125 So. 819

156 Miss. 463

MOBILE & O. R. CO. v. CLAY

No. 28031

Supreme Court of Mississippi

January 27, 1930

Division A

Suggestion of Error Overruled Feb. 24, 1930. Pending on Appeal to U. S. Supreme Court.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE Judge.

Action by C. D. Clay against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed.

Baskin, Wilbourn & Miller, of Meridian, Rufus Creekmore, of Jackson, and Carl Fox, of St. Louis, Mo., for appellant.

When the employee knows of the defect, and appreciates the risk that is attributal to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master's breach of duty.

Jacobs v. Southern Ry. Co., 241 U.S. 229; Pryor v Williams, 254 U.S. 43; Southern Pacific Co. v. Berkshire, 254 U.S. 415; Chesapeake & Ohio Ry. Co. v. Leitch, 276 U.S. 429; Oktibbeha, etc., Co. v. Page & Co., 117 So. 834; San Antonio Gas Co. v. Robertson, 56 S.W. 323.

A pick is a simple tool and no liability occurs from its use.

Vanderpool v. Partingo, 112 N.W. 318, 13 L.R.A. (N.S.) 668; Toth v. Osceolan, 146 N.W. 668; Wassau Lumber Co. v. Cooly, 130 Miss. 333 and 436, 94 So. 228.

Under the Federal Employers' Liability Act the burden of proof is on plaintiff to establish by evidence unaided by any presumptions, every fact material and necessary to his case.

Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472; Gulf, etc., R. Co. v. Wells, 275 U.S. 455.

The master is not an insurer of the safety of his employees, but is bound to exercise only reasonable and ordinary care under the peculiar circumstances of each particular case, to provide for the employees reasonably safe machinery, appliances and materials with which to work.

4 Elliot on Railroads, sec. 1875; Washington & Georgetown Ry. Co. v. McDade, 135 U.S. 554; Union Pacific Ry. Co. v. O'Brien, 161 U.S. 451; Law v. Central District Printing & Telegraph Co., 140 F. 558; A. & V. Railroad Co. v. White, 106 Miss. 141.

The general rule is that, if the employer uses ordinary care to provide and to keep in reasonably safe condition, appliances of a kind that are in common use for the purpose, he is not guilty of negligence.

4 Elliot on Railroads, sec. 1832; Henry v. Fiske, 141 F. 188; Reynolds v. Merchants Woolen Co. (Mass., 1897), 47 N.E. 406; Fuller v. New York, New Haven & Hartford Railroad Co. (Mass., 1900), 56 N.E. 574; Mooney v. Beattie (Mass., 1902), 62 N.E. 725; Seigle v. Detroit G. H. & M. Ry. Co. (Mich., 1910), 125 N.W. 6; Cryder v. C. R. I. & P. Railway Co, 152 F. 416; Gibson v. Milwaukee Light, Heat & Traction Co. (Wis., 1910), 128 N.W. 877; Jefferson v. Republic Iron & Steel Co., 93 So. 890; Wright v. Elkhorn Consolidation Coal & Coke Company, 206 S.W. 634; Payne v. Holder, 219 P. 372 (Okla., 1923); Mississippi Central Railway Company v. Bennett, 71 So. 310; Lampton v. Atkins, 92 So. 638; Hope v. Railway Company, 98 Miss. 829, Commonwealth Steel Company v. McCash, 184 F. 822; Purdy v. Westinghouse Electric & Mfg. Co. (Pa., 1900), 47 A. 237; Drew v. Western Steel Car & Foundry Co. (Ala., 1911), 56 So. 995, 40 L.R.A. (N.S.) 890; Great Northern Railway Company v. Johnson, 207 F. 521; Potter v. Richardson & Robbins Co. (Delaware, 1915), 99 A. 540; Toll et al. v. Prince Line, 124 F. 110; Allison Manufacturing Co. v. McCormick (Pa., 1888), 12 A. 273; Corcoran v. Wanamaker (Pa., 1898), 39 A. 1108; Gould v. Slater Woolen Co. (Mass., 1888), 17 N.E. 531; O'Keefe v. National Folding Box & Paper Company (Conn., 1895), 33 A. 587; Shea v. Wellington (Mass., 1895) 40 N.E. 173; San Antonio Gas Co. v. Robertson, 56 S.W. 323 (Texas, 1900); Pinkley v. C. & E. I. R. R. Co., 246 Ill. 370, 92 N.E. 896, 35 L.R.A. (N.S.) 679; Canfield v. Iowa Dairy Company, 154 N.W. 434; Kietsier v. Cargill Company, 217 N.W. 51; Nordstrom v. Spokane & Inland Empire R. Co., 104 P. 809; Pullman Co. v. Caviness, 116 S.W. 410.

Reily & Parker, of Meridian, for appellee.

Ordinary care differs in different cases. Ordinary care requires that a railroad company inform itself of the contents and ingredients of the substance furnished to its employees with which to work and failing to do so would be negligence.

Woodruff v. Y. & M. V. R. Co., 210 F. 849; Spellman v. Fisher Iron Company, 56 Bart. 151; Smith v. Oxford Iron Company, 36 Am. Rep. 535; U. S. Express Co. v. Ball, 36 App. Cas. (D. C.) 269; Potter v. Richardson & Robbins Co., 99 A. 540; Toll et al. v. Prince Line, 124 F. 110; Allison Mfg. Co. v. McCormick, 12 A. 275; O'Keffe v. National Folding Box & Paper Co., 33 A. 587; Canfield v. Iowa Dairy Separator Company, 154 N.W. 434; Koetsier v. Cargill Company, 217 N.W. 51; Potter v. Richardson & Robbins Co., 99 A. 540; Texas & N. O. Ry. Co. v. Gardner, 69 S.W. 217; Nickle v. Columbia Paper Stock Company, 68 S.W. 955.

The application of the above rule requires that inspection and care should be used to make the employee's position free from avoidable dangers, and when there are dangers that are unavoidable and become risk incident to the employment the employee should be informed of such dangers.

Nelson v. City of New York, 91 N.Y. C. 763.

Argued orally by R. E. Wilbourn, for appellant, and by Marion W. Reily, for appellee.

OPINION

McGowen, J.

The appellee, Clay, filed his declaration in the circuit court against the appellant, the railroad company, for damages for a personal injury--the loss of his right eye. The original declaration was filed July 9, 1927; it was subsequently amended; and the railroad pleaded the general issue and assumption of risks. The cause was submitted to a jury, which returned a verdict for fifteen thousand dollars, the court entered judgment therefor, and the railroad prosecutes an appeal here.

The original declaration sought recovery, based on the negligence of the appellant railroad, for the loss of his eye while appellee was engaged in the service of the railroad as a fireman, firing the locomotive engine on his regular trip from Meridian to Okolona, in this state, at the time both parties being engaged in interstate commerce, as the Mobile & Ohio Railroad Company was, and is, a common carrier operating its railroad from St. Louis, in the state of Missouri, to Mobile, Alabama.

The negligence of the railroad company, as set forth in the original declaration, was based, first, on the large size of the lumps of coal furnished by the master on the tender of the engine, being so large as to be unsafe, as they had to be broken by the fireman while the engine was in motion; second, that the master furnished an unsafe place in which to work; and, third, that there were certain defects in the pick furnished by the master, with which to break up the coal--that the pick used on this occasion was a dangerous tool. In short, the original declaration alleges that, while he was breaking an excessively large lump of coal, he struck it with a pick, and small bits of coal flew therefrom, one of which struck him in the eye with force, from the effect of which he eventually lost his eye--the eyeball having been removed; that the injury to the right eye had greatly affected the vision of his left eye.

Subsequently Clay, the appellee, amended his declaration so as to charge the additional ground of negligence, in that the railroad company violated its duty to him by causing to be placed in the water contained in the tender attached to the boiler a boiler compound, which contained chemicals poisonous and injurious to the human eye; that this substance, so placed in the water, became a part of the liquid; that it was his duty to sprinkle the coal on the engine tender with water thus poisoned; and that the coal which, as fireman, he had to handle, had upon it this poisonous compound; and that this compound came in contact with his eye through bits of coal and dust lodging therein, while he was in the customary discharge of his duties, thus being the proximate cause of permanent injury to his eye.

On the trial of the case, the court peremptorily instructed the jury that there was no liability on the railroad company because of the pick used in breaking the coal, and likewise so instructed the jury as to the condition of the cab in which Clay was at work. The court refused to instruct the jury, for the defendant, that there was no liability on account of the excessive size of the lumps of coal furnished by it.

The court refused, also, to instruct the jury that the railroad was not liable because of the boiler compound complained of, used in the water; and also refused the general peremptory instruction that no liability had been shown as against the railroad on the whole case. All the instructions requested by Clay, and granted by the court, were directed to the question of negligence vel non of the railroad company as to the boiler compound placed in the tender and therefrom sprinkled on the coal by the appellee, Clay.

The material facts are as follows: Clay was about thirty-five years of age at the time of his injury, and was engaged in the performance of his duties as a fireman for the Mobile &amp Ohio Railroad Company, on its locomotive engine, carrying freight in interstate commerce from Meridian, Mississippi, to Okolona, Mississippi. The engine was pulling a freight train; and he had a regular run as a fireman, and had been so engaged for about eight years. On June 12th, in response to a call for service, about six o'clock in the evening he assumed his duties on the engine. The hostler thereof loaded the tender with coal, the tender being connected with the floor of the cab...