Pearl River Valley R. Co. v. Moody

• Decision Date: 11 January 1937
• Docket Number: 32394
• Citation: 171 So. 769,178 Miss. 1
• Court: Mississippi Supreme Court
• Parties: PEARL RIVER VALLEY R. CO. v. MOODY

171 So. 769

178 Miss. 1

PEARL RIVER VALLEY R. CO. v. MOODY

No. 32394

Supreme Court of Mississippi

January 11, 1937

Division A

Suggestion Of Error Overruled February 8, 1937.

APPEAL from circuit court of Pearl River county HON. HARVEY MCGEHEE Judge.

Action by John Moody against the Pearl River Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Brady, Dean & Brady, of Brookhaven, for appellant.

Appellee, in his amended declaration, plead that both the appellant and he were engaged in interstate commerce at the time he claimed to have received his alleged injury. This, appellant admitted in its notice under general issue. No proof of this fact, therefore, was required and both appellee and appellant admitted that the provisions of the Federal Employers' Liability Act applied. It is a well established principle of law that whenever an action is brought under the Federal Employers' Liability Act, wherever brought, the rights and obligations of the parties depend upon it and the applicable principles of common law as interpreted and applied in the federal courts.

Seaboard Airline Ry. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Chesapeake & Ohio R. Co. v. Deatley, 241 U.S. 310, 60 L.Ed. 1016; Bolt v. Pa. R. Co., 245 U.S. 44l. 62 L.Ed. 385; N. O. & N. E. R. Co. v. Harris, 247 U.S. 367. 62 L.Ed. 1167; Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041; Chesapeake & O. R. Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157.

Appellant respectfully urges that it is a well established principle of law that when damages are created under the Federal Employers' Liability Act, the defense of assumption of risk is permissible and that where the undisputed evidence clearly shows such assumption, the trial judge should direct a verdict for the defendant.

Chesapeake & O. R. Co. v. Kuhn, 284 U.S. 44, 76 L.Ed. 157.

Where an employee knows the danger and there is no promise to remedy such danger upon which he relies and he continues in the employment, he assumes the risk by doing so.

L. & N. R. R. Co. v. Russell, 164 Miss. 529; Seaboard Airline R. R. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; Chesapeake & O. R. R. Co. v. Deatley, 241 U.S. 310, 60 L.Ed. 1016; Bolt v. Pa. R. Co., 245 U.S. 441, 62 L.Ed. 385; N. O. & N. E. R. R. Co. v. Harris, 247 U.S. 367, 62 L.Ed. 1167; Chicago, N. & St. B. R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041; M. & O. R. Co. v. Clay, 156 Miss. 463, 125 So. 819; G. & S. I. R. R. Co. v. Hayles, 140 Miss. 829, 105 So. 458.

In the Hayles case, Hayles knew he was to have only one helper. He knew the character of the place including the character of the ground and this court held that Hayles assumed whatever risk there was, resulting from the failure of the appellant to furnish a safe place to work, as well as a sufficient number of co-workers.

Appellee in this case knew that he was to have only three co-workers to assist him in removing the mud sill. He, too, knew the character of the place in which he was working, but he, nevertheless, with this knowledge, proceeded to attempt to remove the mud sill in question and he, likewise, assumed all risk of injury resulting from his attempt to remove said mud sill.

St. L. & S. R. R. Co. v. Snowden, 149 P. 1083; Burke v. Union Coal & Coke Co., 1157 F. 178, 84 C. C. A. 626; So. Kan. Ry. Co. v. Drake, 53 Kan. 1, 35 P. 825; Director General of Railroads v. Bennett, 268 F. 767; Davis v. P. & R. R. Co., 276 F. 187; Hartwich v. C. & A. R. R. Co., 286 F. 672; Wash. Terminal Co. v. Sampson, 289 F. 577; Pryor v. Williams, 254 U.S. 43.

Appellant respectfully submits that even though appellee did not assume the risk of removing the mud sill in question because appellee did not know and appreciate the danger in attempting to do so with only three co-workers, nevertheless, the appellant was entitled to a peremptory instruction and the lower court erred in not so ruling, for the reason that appellee had the right to adopt a safe manner in removing the mud sill in question and instead of doing so, he elected and chose an unsafe and dangerous manner in which to remove the mud sill.

This court has held and it is a well settled rule of law that if the master provide a safe means for doing certain work, and the servant elects to use different and dangerous methods he cannot recover for the reason that such acts become the negligence of the servant and not that of the master.

Ragland v. Native Lbr. Co., 117 Miss. 602; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300; McKinnon v. Braddock, 139 Miss. 424; Brown v. Coley, 168 Miss. 778; Natchez Cotton Mills Co. v. McLain, 33 So. 723; J. J. Newman Lbr. Co. v. Dantzler, 64 So. 931; Y. & M. V. R. R. Co. v. Downs, 109 Miss. 140; Ovett Land & Lbr. Co. v. Adams, 109 Miss. 740; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407; Stocks v. Adams-Newell Lbr. Co., 151 Miss. 711; Rose v. Pace, 144 Miss. 375; Morgan Hill Paving Co. v. Morris, 160 Miss. 79.

All that was required of the appellant was that he would exercise reasonable care to see that appellee was furnished a sufficient number of employees to safely remove the mud sill in a safe and proper manner.

Hock v. Mills, 101 Miss. 91; Anderson v. McGrew, 154 Miss. 291; Barron Motor Co. v. Bass, 167 Miss. 786; McLemore & McArthur v. Rogers, 169 Miss. 650; Gulfport Creosoting Co. v. White, 157 So. 86; McComb Box Co. v. Duck, 164 So. 406.

Appellant earnestly urges that the verdict reached by the jury in this case is contrary to the overwhelming weight of the evidence and for this reason the court will not only reverse this case, but will also decide it favourably to appellant.

Since April 22, 1908, Congress, by act, took possession of the field of employers' liability in interstate transportation by rail, and superseded all state laws upon the subject. Appellee, therefore, had no right to proceed under counts No. and 2 of his declaration, and the lower court should have so ruled and stricken count No. 1 of said declaration. The lower court erred in allowing appellee to introduce any evidence under count No. 1 of his declaration.

Grayson B. Keaton, of Picayune, and Hall & Hall, of Columbia, for appellee.

The testimony shows coercion in making appellee lift on the sill. The testimony showing promise of additional assistance in removing the remaining sills was proper. Appellee did not assume the risk of injury. A servant will not be held to have assumed a risk in the absence of appreciation of danger.

C. & O. Ry. v. DeAtley, 60 L.Ed. 1016; Y. & M. V. R. R. v. Dees, 83 So. 631.

When the master promises to remedy or remove the danger, the servant will not be held to have assumed the risk.

Hough v. T. & P. R. R. Co., 25 L.Ed. 612; Seaboard Airline Ry. v. Horton, 58 L.Ed. 1062.

Appellee did not elect an unsafe manner in which to do his work. The evidence overwhelmingly shows negligence in failing to provide a sufficient number of men to do the work required of appellee.

Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Jefferson v. Denkrnann Lbr. Co., 148 So. 237; Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792.

The verdict is not contrary to the weight of the evidence.

The trial court did not err in refusing to strike count one from the declaration.

Thornton's Federal Employers' Liability Act (3 Ed.), sec. 203, page 304; 2 Roberts' Federal Liabilities of Carriers, page 1193, sec. 686.

The trial court did not err in admitting evidence under count one of the declaration.

Argued orally by Thos. P. Brady, for appellant.

OPINION

Cook, J.

Appellee instituted this suit against the Pearl River Valley Railroad Company, appellant, seeking to recover damages for personal injuries alleged to have been sustained while he was employed in repairing a bridge on the line of railroad owned by said company. There was a verdict and judgment in favor of the appellee for $ 2,250, from which this appeal was prosecuted.

The original declaration alleged, in substance, that while appellee was employed by appellant, and was engaged in and about the repair on a railroad bridge, he and three colaborers were required to remove, from its position underneath the bridge, a mud sill approximately twelve inches square and fourteen feet long, which rested upon, and was imbedded in, earth and mud, and was soaked in water and very heavy; that the appellant directed the appellee and his three co-workers to remove the said piece of timber by picking it up, and carrying it from under the bridge; that it therefore became and was the duty of appellant to furnish a sufficient number of servants to perform the work; and that the appellant negligently failed to discharge its duty in this, to wit, "the said piece of timber, in its said water-soaked condition, and imbedded in, the earth and mud, was of such great weight that four men could not lift and carry the same with reasonable safety, and it then and there reasonably required the services of more than four men to do the said work, and the defendant then and there knew the same, or should have known thereof by the exercise of reasonable care, but the defendant negligently required the plaintiff and the three coworkers to do the said work."

The declaration further averred that the appellee and his three co-workers, in obedience to the command and direction of appellant, undertook to lift and carry the said heavy piece of timber, and while so engaged the great weight of the timber bore down upon appellee with such great force that the wail of Ms abdomen was torn, and he was thereby caused to sustain a rupture, or hernia.

To this declaration appellant filed a plea of the general issue, and gave notice thereunder that it would offer evidence to show that, at the time of the alleged injury, the appellant and ...