Richmond & D.R. Co. v. Rush

• Decision Date: 23 April 1894
• Citation: 71 Miss. 987,15 So. 133
• Parties: RICHMOND & DANVILLE RAILROAD CO. v. J. S. RUSH
• Court: Mississippi Supreme Court

15 So. 133

71 Miss. 987

RICHMOND & DANVILLE RAILROAD CO. v. J. S. RUSH

Supreme Court of Mississippi

April 23, 1894

FROM the circuit court of Clay county, HON. C. H. CAMPBELL, Judge.

Appellee J. S. Rush, was run over and permanently injured by defendant's cars, which he was endeavoring to uncouple and brings this action to recover for the injuries. There was a judgment for $ 1,000 for plaintiff, and defendant, after motion for new trial overruled, appeals.

The testimony throwing light on the question of plaintiff's contributory negligence, which is the sole question passed upon by the court, is as follows:

Plaintiff was in the employ of defendant as brakeman on a freight-train, and on September 26, 1891, as his train approached Eupora, a station on defendant's road, the conductor told plaintiff and the other brakemen that there was a box-car to be taken from the train and left at the station, and directed plaintiff to uncouple it from the caboose. The train having stopped, in compliance with the order, plaintiff, who, with the conductor, was riding on top of the train, descended a ladder between the cars, and stood on a beam about twelve inches square that ran horizontally across the end of the car, and which formed a narrow platform on which one could stand while uncoupling. Odinarily it was an easy matter to stand on this beam and lean over and pull the pin from the link with one hand, holding on to the ladder with the other. This plaintiff tried to do, but the pin was fast, and he could not move it with one hand; so he got down on his knees on the beam and with both hands took hold of the pin, and, after shaking it, succeeded in moving it, but, just as he pulled it out, the conductor signaled the engineer to start, and the train moved forward with a sudden jerk, and the cars parted and plaintiff fell between them and was run over. His leg was badly crushed, necessitating amputation. At the time of giving plaintiff the order to uncouple, the conductor was standing near him on top of the train, and asked plaintiff to let him have the coupling-stick which he carried in his hands, purposing himself to use it in setting a brake. Plaintiff thereupon gave up his stick and proceeded to uncouple with his hands. The conductor saw him go down between the cars, and presently, but before he came out heard the signal "all right," and, supposing it came from plaintiff, signaled the engineer to start.

In behalf of the defendant it was shown that its printed rules which were furnished to conductors and flagmen, among other things, prohibit brakemen from coupling or uncoupling cars except with a stick, and forbid brakemen or others to go between cars for that purpose when an engine is attached; and it was shown that plaintiff, who can read and write, when entering into the employment of defendant, signed a statement that he understood this rule, and agreed to observe it, and to waive all liability of the company for any results of disobedience of the rule, and further certifying that he had carefully read and fully understood the rule. Every brakeman was furnished a coupling-stick, and, as stated, plaintiff had one on the day of the accident. There was testimony for the defense that it was very difficult to uncouple with the stick, and that the foregoing rule was habitually, and with the knowledge and sanction of the conductor, violated by the brakemen on the train. But on these points the testimony was conflicting. It was shown, however, that train hands plaintiff as well as others, had been careful to conceal from superior officers of the company their disregard of the rule, and that such officers had on several occasions discharged brakemen for violation of it.

Among other instructions given for plaintiff were these:

"1. If the jury believe from the evidence that the conductor ordered plaintiff to uncouple two cars, and, when he was in the act of proceeding to do so, took from him his stick, and afterwards, while plaintiff was between the cars, uncoupling them, and obeying the orders of the conductor, that the conductor, without any warning to or from plaintiff, and without knowing that he had come out from between the cars, gave the signal to start the train, and the engineer did start the train, and plaintiff was injured in consequence of it, then the plaintiff is entitled to recover damages for the legitimate consequences of the injury."

"5. Although the jury may believe from the evidence that plaintiff was required by the rules of the company to use a stick in uncoupling its cars, yet, if they believe from the evidence that he was uncoupling without a stick, and this was known to the conductor who had control of the train and the right to direct its movements, and that said conductor, with such knowledge, and without any other fault or negligence on the part of plaintiff, caused the train to be suddenly and violently moved forward, by reason whereof the plaintiff was injured, then defendant would be liable to plaintiff for injury caused by the conduct of said conductor."

Verdict and judgment for plaintiff for $ 1,000. Motion for new trial overruled. Defendant appeals.

Reversed and remanded.

A. F. Fox, for appellant.

Neither custom nor usage can dispense with express stipulations in a contract. Railroad Co. v. Graham, 58 Am. & Eng. R. R. Cas., 400; Railroad Co. v. Kolb, 73 Ala. 396. Although the conductor knew the rule was violated, he had no authority to dispense with it. He himself was bound by the same rule. 53 Am. & Eng. R. R. Cas., 410, 417. It was not competent to show that the rule was impracticable and not observed. Employes are not the judges of the reasonableness of rules of the company, but are bound to obey them. 33 Ohio St. 227.

In disobeying the rule, plaintiff was guilty of contributory negligence. 31 Am. & Eng. R. R. Cas., 149, 190; 39 Ib., 161, 289, 329; 53 Ib., 396, note; 88 Ala. 518; 90 Ib., 35, 69; Beach on Con. Neg., § 135.

The act being dangerous, it was contributory negligence regardless of the rule. 91 Ala. 435, 548; 84 Ib., 137.

Every thing in the plaintiff's first instruction may be true, and yet plaintiff may have been guilty of gross contributory negligence. It assumes that it is the duty of the conductor to take care of plaintiff as if he were a child; that he must know when plaintiff has come out from between the cars, and out of danger, regardless of plaintiff's carelessness, and of the fact that plaintiff swears that there was no danger in standing on the beam and holding to the ladder. The fifth instruction for plaintiff is equally objectionable. If the train started with a sudden jerk, it was the act of the engineer, not the conductor.

Critz & Beckett, for appellee.

Plain...