New Orleans Great Northern R. Co. v. Branton

Decision Date20 March 1933
Docket Number30484
Citation146 So. 870,167 Miss. 52
CourtMississippi Supreme Court
PartiesNEW ORLEANS GREAT NORTHERN R. CO. v. BRANTON

Division A

1. MASTER AND SERVANT.

Burden is on plaintiff, in action under Federal Employers' Liability Act, to show employer's negligence resulting in injuries complained of (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

2 RAILROADS.

Engineer is not bound to stop train in country every time he sees person on track, where nothing unusual occurs, but may assume that such person is in possession of normal faculties and will note alarm given and take due precaution for his safety.

3 RAILROADS.

Engineer is not bound even to slacken speed of train on seeing adult person walking or sitting on track until circumstances arise indicating that such person is not normal or has not heard alarm and will probably not seek safety in time.

4. MASTER AND SESVANT.

Testimony that train, judging by "blistered" places on rails was stopped in less distance than that between it and person struck thereby when engineer applied emergency brakes by his own admission held competent on question of his negligence (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

5. MASTER AND SEBVAHT.

Trackwalker, sitting on cross-tie within sweep of train, which he knew was soon due, was negligent, but did not assume risk incident to employment (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

6. MASTER AND SERVANT.

Doctrine of assumed risk is applied as at common law in cases arising under Federal Employers' Liability Act (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

7. MASTER AND SERVANT.

Trackwalker's negligence in remaining seated on cross-tie in path of rapidly approaching train held for jury (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

HON. W. J. PACK, Judge.

APPEAL from circuit court of Marion county HON. W. J. PACK, Judge.

Action by Mrs. Vivian Branton, administratrix of the estate of M. M. Branton, deceased, against the New Orleans Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Certiorari denied by United States Supreme Court, October 16, 1933. Affirmed.

Affirmed.

Flowers, Brown & Hester, of Jackson, and Henry Mounger, of Columbia, for appellant.

In cases arising under the Federal Employers' Liability Act there can no longer be any dispute over the proposition that the burden of proof is upon the plaintiff to show negligence, and that the injuries complained of are the result of such negligence. In proceedings brought under the Federal Employers' Liability Act rights and obligations depend upon it and applicable principles of common law as interpreted and applied in federal courts; and negligence is essential to recovery.

Y. & M. V. R. Co. v. McCaskell, 79 So. 817.

Under the Federal Employers' Liability Act, there is neither statutory nor common law presumption of negligence upon which the plaintiff may rely. Negligence is the basis of liability under the act, and the plaintiff has the burden of proving negligence.

G. & S. I. R. Co. v. Hales, 140 Miss. 829, 105 So. 458.

The engineer of a train running on schedule time, on its own right of way, in the open prairie, away from any town or crossing, is not called upon to immediately slacken its speed from the simple fact that a trespasser sitting upon the ties does not at once rise and change his position on receiving warning of the approaching of the train by the ringing of the bell and blowing the whistle duly and properly given.

Herbert v. L. & W. Ry. Co., 104 La. 724, 29 So. 239; Y. & M. V. R. Co. v. Lee, 114 So. 866; Patton v. Texas Pacific R. R. Co., 179 U.S. 659, 21 S.Ct. 275, 45 L.Ed. 361; Gulf, Mobile & Northern Railroad Co. v. Collins, 117 So. 593; Gulf, Mobile & Northern Railroad Co. v. Clay, 125 So. 819; Ikler v. Nix, 114 Miss. 293, 75 So. 120; Vochees v. C. R. B. & P. R. Co., 30 S.W.2d 22.

Another ground on which the peremptory instruction asked by the defendant should have been given, was that the danger incident to placing himself upon the end of the cross tie in such position as to be struck by a passing train, at a time when he knew that a regular scheduled passenger train was about to arrive at such point, was open, obvious and apparent, and therefore the deceased assumed the risk incident to placing himself in such position and remaining there until struck by the train.

The defense of assumption of risk is available to the defendant in actions brought under the Federal Employer Liability Act.

So. Ry. Co. v. Crockett, 234 U.S. 725, 34 S.Ct. 725; Jacobs v. Southern Ry. Co., 241 U.S. 229, 36 S.Ct. 588, 60 L.Ed. 970; Southern Pacific Ry. Co. v. Berkshire, 254 U.S. 415, 41 S.Ct. 162; G. M. & N. R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Elliott v. I. C. R. Co., 111 Miss. 426, 71 So. 741; S. A. L. Ry. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Schlemmer v. Buffalo R. & P. Ry. Co., 220 U.S. 590, 55. L.Ed. 596; D. L. & W. Ry. Co. v. Koske, 279 U.S. 7, 73 L.Ed. 578; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 501, 58 L.Ed. 1062, 1068, L. R. A. 1915B, 475, 8 N. C. C. A. 834; St. Louis San Francisco R. Co. v. Mills, 271 U.S. 344, 70 L.Ed. 979, 46 S.Ct. 520; Northern R. Co. v. Page, 274 U.S. 65, 75, 71 L.Ed. 929, 47 S.Ct. 491; M. P. Ry. Co. v. David, 284 U.S. 460, 76 L.Ed. 399; C. & O. Ry. Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157.

T. B. Davis and Hall & Hall, all of Columbia, for appellee.

The peremptory instruction requested by appellant was correctly refused. By the first section of the Federal Employer's Liability Act a carrier is liable to an employee for damages sustained from negligence of any other employee.

45 U.S.C. A., section 51.

If an engineer sees a person in a position of peril on the track, the engineer is negligent if he fails to exercise reasonable care to prevent injury to such person.

DeBaur v. L. V. R. R. (C. C. A.), 269 F. 964; Jamison v. I. C. R. R. Co., 63 Miss. 37; Christian v. R. R. Co., 71 Miss. 240; Cottrell v. Ry. Co., 80 Miss. 617; A. & V. R. R. v. Kelly, 88 So. 708; I. C. R. R. v. Mann, 102 So. 854, 137 Miss. 819; E. H. Y. P. Trustees v. Holley, 106. So. 823; Y. & M. V. R. R. v. Lee, 114 So. 866.

There is nothing in the authorities cited by the appellant which conflicts with this rule. Under the facts in this case negligence of the engineer was proven beyond question. Certainly the peremptory instruction was correctly refused, for it is always a question for the jury to say whether defendant is guilty of negligence.

S. C. & P. R. R. v. Stout, 21 L.Ed. 745, 17 Wall. 657; M. & O. R. R. v. Johnson, 141 So. 582; Haynes-Walker v. Hankins, 105 So. 860, 141 Miss. 55; Stevens v. R. R. Co., 81. Miss. 206; Combs v. R. R. Co., 92 Miss. 539; Harrison v. Ry. Co., 93 Miss. 49.

Deceased in this case did not assume the risk of the engineer's negligence.

The Federal Employer's Liability Act abolishes the defense of assumption of risk where safety statute is violated.

45 U.S.C. A., section 54.

In all other respects the statute is silent and therefore the doctrine of assumption of risk is applied according to the rules of the common law.

An employee assumes only the ordinary risk of his employment; he is never held to have assumed the risk of positive negligence unless known to and acquiesced in by him.

S. P. L. A. & S. L. R. R. v. Brown, 258 F. 806; Y. & M. V. R. R. v. McCaskell, 79 So. 817; Elliott v. I. C. R. R. Co., 71 So. 741; Y. & M. V. R. R. v. Dees, 83 So. 613; Fish v. C. R. I. & P. R. R., 172 S.W. 340, Ann. Cas. 1916B 147; Thornton's F. Emp. Lia. Act (3 Ed.), 209; L. & N. R. R. v. Jacobs, 118 So. 565.

Even when pleaded and proven, assumption of risk is a question of fact for the jury and not a question of law for the court.

McGovern v. P. & R. Ry., 235 U.S. 389, 59 L.Ed. 283; C. & O. R. R. v. DeAtley, 241 U.S. 310, 60 L.Ed. 1016; N. & W. Ry. v. Earnest, 57 L.Ed. 1096; Graves v. G. & S. I. R. R., 110 So. 234; Lorick v. S. A. L. Ry., 86 S.E. 675; L. & N. R. R. v. Porter, 87 So. 288; Looney v. N.W. Ry., 135 S.E. 262, 48 A. L. R. 806.

In this case the jury was clearly instructed on assumption of risk, and decided that issue against appellant.

OPINION

McGowen, J.

On. December 24, 1931, appellee's intestate, M. M. Branton, was struck by a north-bound train of appellant railroad company and injured, and, from the injuries received, he died a few hours afterwards. The deceased was employed by the appellant railroad company as a trackwalker, and it was his duty to inspect and repair, where he was able, the track of the railroad company daily. He lived at White Bluff. It was his custom each morning to ride the train north to Tilton, a distance of about five miles, and return south, walking, inspecting the track, to White Bluff, where he would stop for his noonday meal, and from thence proceed south on the train to Morgantown, get off there, and walk back to White Bluff, examining the track, reaching the latter place about four o'clock in the afternoon; and this duty he would perform every day except Saturday.

Just prior to the accident, he was seen by a number of witnesses about one thousand feet north of the place of the accident. He told these witnesses that he was sick, that he had a chill, and then proceeded south. Shortly afterwards he was observed by these witnesses sitting on the edge of the cross-ties, within the sweep of a train, with his chin resting in his hands and his elbows on his knees, facing outward from the track with his back to it. For about one thousand feet north and one-half mile south of where he was thus seated, the track was comparatively level and straight. Branton had been engaged in the same duties for two years and was...

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