New Orleans & N.E. R. Co. v. James

• Decision Date: 09 June 1930
• Docket Number: 28641
• Parties: NEW ORLEANS & N.E. R. Co. v. JAMES
• Court: Mississippi Supreme Court

128 So. 766

157 Miss. 607

NEW ORLEANS & N.E. R. Co. v. JAMES

No. 28641

Supreme Court of Mississippi, Division A

June 9, 1930

(Division A.)

1. MASTER AND SERVANT. Evidence of custom that locomotive should not be moved while fireman was on running board was admissible.

Question for decision in fireman's action for injuries was whether engineer exercised ordinary care in operation of locomotive at time that fireman was leaving, or attempting to leave cab, so that evidence in respect to rule or custom of not starting or moving locomotive as measure of safety became material in determining issue.

2. MASTER AND SERVANT. Instruction in respect to engineer's negligence in violently moving engine without reference to knowledge that fireman was undertaking to leave cab held erroneous under evidence.

The testimony established that such movement or jerk of the engine would not have been attended with any sort of danger to fireman if he had been in the cab and had not been attempting to pass therefrom onto running board.

3. MASTER AND SERVANT.

Sudden movement of engine was not breach of duty to fireman, unless engineer knew, or should have known, that fireman was in position of danger.

HON. J D. FATHERREE, Judge.

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

Suit by W. C. James against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Bozeman & Cameron, of Meridian, for appellant.

The duty of the engineer toward the fireman was to exercise reasonable care under the circumstances in evidence, and it was not competent to permit plaintiff's witnesses to testify that the movement of the engine at all was a violation of duty owed by the engineer to the fireman, and hence negligence.

K. C. R. Co. v. Spencer, 72 Miss. 491; Grace v. Gulf R. Co., 25 So. 475.

The instruction given for plaintiff wholly excluding and ignoring the material issue of fact as to whether or not the engineer had notice or knowledge that the fireman was undertaking to leave the cab of the engine was erroneous.

Miss. Digest, Trial, sec. 253; Lackey v. St. Louis & S. F. R. Co., 102 Miss. 339; Harrison v. Garner, 110 Miss. 586; Bank v. Hulsey, 112 Miss. 632; Owen v. Anderson, 119 Miss. 66; Reid v. Yazoo, etc., R. Co., 94 Miss. 639; Yazoo, etc., R. Co. v. Bruce, 98 Miss. 727; Franks v. Armstrong, 152 Miss. 719; Jones v. State, 152 Miss. 900; Austin v. M. O. R. R. Co., 134 Miss. 226, 98 So. 3; G. M. & N. R. Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370; A. T. & S. F. R. Co. v. Toops, Admr. (U.S. Sup.), U.S. Daily, April 8, 1930.

Reily & Parker, of Meridian, for appellee.

Testimony of custom is relevant when it tends to show upon what course of conduct on the part of the principal the servant may rely in carrying on the work of the principal.

26 Cyc. 1156-1157, 1433; C., R. I. & P. R. Co. v. Ward, 64 L.Ed. 430; Thornhill v. Davis, Director General, 24 A.L.R. 617.

An instruction defining the duty of using reasonable care, and charging that the failure to use such care is negligence, and charging that if the defendant improperly, carelessly and negligently caused the engine to be moved suddenly and violently, and such movement was dangerous and calculated to cause injury to the plaintiff, and did cause injury to the plaintiff, the defendant would be liable is correct without qualifying as to the knowledge of engineers as to the position of the plaintiff.

Galveston, etc., R. R. Co. v. Cade, 93 S.W. 124; Veney v. Samuels, 107 So. 517.

OPINION

Cook, J.

The appellee, W. C. James, instituted this suit in the circuit court of Lauderdale county, Mississippi, against the New Orleans & Northeastern Railroad Company, seeking to recover damages for personal injuries alleged to have been sustained by him as a result of the negligence of the locomotive engineer in charge of the locomotive on which the appellee was employed as a fireman, and from a verdict and judgment in favor of the appellee in the sum of ten thousand dollars this appeal was prosecuted.

The declaration alleged in substance that the appellee was engaged in interstate commerce, as a locomotive fireman working on a switch engine in the yards at Meridian, Mississippi; that, while the locomotive had come to a stop in the course of its switching movements, it became the duty of the appellee fireman to go from the cab of the locomotive through a door or opening on the front thereof and onto the running board along the side of the locomotive, for the purpose of oiling the automatic bell ringer; that ordinary care required that the locomotive should be kept stationary or still while the appellee was engaged in the performance of this duty; that, while undertaking to perform this duty, and while the appellee was in the act of passing out of the cab of the locomotive and onto the running board, the engineer carelessly, negligently, and in wanton disregard of the rights and safety of the appellee, caused the locomotive to move with a sudden, improper, and reckless jerk, thereby rendering the appellee's position dangerous, and causing him to be violently knocked, jerked, and thrown from the locomotive onto the ground and railroad tracks, from which fall serious injuries to the appellee resulted.

The appellee testified that he had been working for the appellant railroad company about eleven years as pumper, hostler, and locomotive fireman, and was an experienced fireman and engineman; that as fireman he was under the direction of the engineer who was in charge of the locomotive; that on the day he was injured he went to work about eight o'clock in the morning at his regular job as fireman of a switch engine in the Meridian yards, and was injured about eleven o'clock; that the switch engine was equipped with an automatic bell ringer and also with a bell cord by which the bell could be rung when the automatic ringer was not working; that on this particular morning the automatic bell ringer was not working, and the appellee, as fireman, was ringing the bell when necessary by pulling the cord; that twice during the morning the engineer instructed him to oil the automatic bell ringer, but he did not then do so; that the bell was located on top of the locomotive some distance in front of the cab, and, in order to oil it, it was necessary to pass out of the cab through a door in the front thereof onto a running board alongside of the locomotive.

As to the incidents occurring at the time of his injury, he testified that they pulled up to a point near Twenty-Second avenue with fifteen or twenty cars, and there stopped for some reason; that the engineer then instructed him to oil the bell ringer; that, while the locomotive was standing still he took his oil can and started...