Myers v. Lamb-Fish Lumber Co.

Decision Date30 March 1914
Docket Number16788
Citation64 So. 727,106 Miss. 766
CourtMississippi Supreme Court
PartiesF. J. MYERS et al. v. LAMB-FISH LUMBER COMPANY

APPEAL from circuit court of Tallahatchie county, HON. N. A. TAYLOR Judge.

Suit by E. F. Myers and others against the Lamb-Fish Lumber Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Wells May & Sanders and C. E. Harris, for appellants.

We maintain that Earl Myers was not the conductor of the log train; that if he was the conductor, the danger incident to the use of the log car in connection with the coal car was not a risk assumed by him within the meaning of the exception contained in Acts of 1908, partially abolishing the fellow-servant rule and the rule of assumption of risk. But our main contention is, that whether right or wrong on the first proposition, the failure of the appellee to furnish a safe track upon which to operate the log train was a breach of duty to the deceased, danger of injury from which was not assumed by him.

Earl Myers was not a conductor within the meaning of exception contained in chapter 194, Laws 1908. We take the position that the term "conductor," as employed in this language of the said act, except as to conductor or engineer in charge of dangerous or unsafe cars or engines voluntarily operated by them" has no application to a brakeman on a log train. We must credit the legislature with common sense in adopting this law and with employing language in its ordinary, everyday acceptation. We all know what are the functions and duties and privileges of conductors in charge of freight and passenger trains on the commercial railroads of the country.

The conductor of an ordinary freight or passenger train is not required to look after the coupling of cars. That is a duty that devolves upon the brakeman or flagman, ordinarily.

But there is yet another reason why the facts of this case do not bring it within the exception of the act. If we construe the act rightly, the term "dangerous and unsafe cars voluntarily operated by them," means cars that are dangerous and unsafe to be used for the purpose for which they were constructed and intended to be used. The log car in use here was a perfectly good log car and suitable and sufficient for use as a log car; the coal car was a perfectly good coal car, suitable and sufficient for the use for which it was intended to be put. There was no defect in either of said cars or in their appliances or equipment. The trouble arose when the appellee undertook to make such a combination in the use of them in connection with each other as would render the operation hazardous, and which attempted use increased the dangers of the employment of the deceased.

If therefore, Earl Myers was not a conductor, within the meaning of the statute, he did not assume the risk incident to the use of the cars in question; or if the cars were not dangerous and unsafe in the way meant by the statute, but were rendered dangerous and unsafe by the way in which appellee attempted to use them, he did not assume the risk.

If the car was not properly loaded, thereby increasing the risk of the employment, the master is liable.

The testimony shows that the log car was loaded with logs of unequal and uneven lengths, ranging from fourteen to twenty feet in length. It is also shown that the end of one of the logs extended so far beyond the end of the log car that it jammed the end of the coal car when the drawheads passed. Appellee knew what sort of track it was maintaining, and knew what kind of cars the log cars thus loaded would be coupled to at the coal chute. He knew that such couplings were difficult to make and that if the drawheads passed, as they did on this occasion, the cars would be brought close together and if any log was so loaded on the car as to extend beyond the end of the car too far, that the log would crush any brakeman who undertook to make the coupling. Knowing these facts, it was actionable negligence for appellee to operate the car loaded in this fashion.

Unsafe track constitutes a breach of duty to furnish a safe place to work. But above and beyond every circumstance in the case, stands the gross breach of duty on the part of appellee in its failure to furnish the deceased with a safe place in which to work. And this breach of duty contributed to, if it did not wholly cause, the injury.

On the facts of this case, if one of the theories, which we anticipate will be advanced by the appellee and which is forecasted by some of the questions propounded to witnesses, be that the cause of the injury is not known, then we submit that the principle res ipsa loquitur applies, because at the time of the injury the deceased was discharging his duty, in broad open daylight, in what would ordinarily have been a safe and proper way to do his work, and in doing his task he was jammed between the ends of the cars, or the end of the log and the end of the coal car, where ordinarily there would have been a clear space of four feet. This cast upon appellee the burden of exculpating itself, which it failed to do.

Upon the various contentions made, we submit a few authorities. Mathew v. Railroad Co., 93 Miss. 325; Isbell v. I. C. R. R. Co., 25 So. 1037; Y & M. V. R. R. Co. v. Scott, 95 Miss. 43; O'Neal v. Refuge Cotton Oil Co., 88 Miss. 617; L. & N. R. R. Company v. Thomas, 88 Miss. 600; Railroad Company v. Bussey, 82 Miss. 616; White v. R. R. Co., 72 Miss. 12; R. R. Co. v. Hicks, 91 Miss. 352; Neal v. Dulate, 93 Miss. 201; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292.

The term "conductor," as employed in the Act of 1908, chapter 194, means one who ordinarily performs the well-understood functions of that position. See 2 Words and Phrases, p. 416, quoting Hartford v. Northern Pac. R. R. Co., 64 N.W. 1033, 91 Wis. 374. The reasoning and analogy of that case seems quite conclusive of the question here.

Res ipsa loquitur. For the application of this rule, we refer the court to the leading case of A. & V. Ry. Co. v. Groom, 52 So. 703. Does the act of 1912, making proof of injury in such cases prima facie evidence of negligence, apply in this case?

It will be noted that the injury in this case occurred before the passage of chapter 215, Laws 1912, which act makes the proof of injury in cases of this character prima facie evidence of negligence, devolving upon the defendant the burden of clearly exculpating itself by the testimony. If the rule established by that act is a rule of evidence and a rule of procedure conferring no substantive or new right, then we say that it applies to this case. If, upon the other hand, the effect of that act is to confer a right of action where none existed before, and to confer substantive rights, then, of course, it would have no retroactive effect.

We shall not undertake to discuss this question, for two reasons: Primarily, because we believe that it makes no difference whatever whether the act applies to this case or not, because of our conviction that the proven facts in the case are sufficient to show that Earl Myers came to his death because of the negligent acts and omissions of his employer, the appellee. And in addition to this reason, the question involved has been discussed at length in another case pending in this court, which will be submitted in advance of this, and the determination of the question in that case will automatically become the law of this case in that particular.

C. E. Harris, for appellant.

The supreme court of the United States in the case of Geo. A. Luria v. United States, in an opinion filed October 20, 1913, has squarely decided that a statute "providing that proof of one fact shall constitute prima facie evidence of the main fact in issue, is but to enact a rule of evidence and quite within the general power of government."

And they further declare, "Nor is it a valid objection to such legislation that it is made applicable to existing causes of action as is the case here, the true rule in that regard being well stated in Cooley's Constitutional Limitations (7 Ed.), 524, in these words: "It must also be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the state provides for its citizens; and generally in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must therefore at all times be subject to modification and control by the legislature; and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those states in which retrospective laws are forbidden. For the laws as changed would only prescribe rules for presenting the evidence in legal controversies in the future; and it could not therefore be called retrospective, even though some of the controversies upon which it may act were in progress before." Webb v. Den, 17 How. 576, 578; 15 Law Ed. 35, 26; Hopt v. Utah, 110 U.S. 574, 590; 28 Law Ed. 262, 268; 4 S.Ct. 202; 4 Am. Crim. Rep. 417; Thompson v. Missouri, 171 U.S. 380; 43 Law Ed. 204; 18 S.Ct. 922; Reitler v. Harris, 223 U.S. 437, 441; 56 Law Ed. 497, 499; 32 S.Ct. 248.

Dinkins & Caldwell, for appellee.

The proof shows that Earl Myers was a conductor. Section 4056, of Miss. Code 1906, with the amendments thereto, practically abolishes the fellow-servant rule, except as to conductors and engineers in charge of dangerous and unsafe cars and engines voluntarily operated by them. The proof clearly shows that the decedent, Earl Myers, had the direction and full...

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    ...... Swan's case, supra; Mississippi Central Railway. Company v. A. T. Mason, 51 Miss. 234; Myers et al. v. Lamb F. Lumber Co., 64 So. 727. . . Where. the court is doubtful or there ......
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