Ross v. Louisville & N.R. Co.

• Decision Date: 01 March 1937
• Docket Number: 32511
• Citation: 178 Miss. 69,172 So. 752
• Parties: Ross v. LOUISVILLE & N. R. CO.
• Court: Mississippi Supreme Court

172 So. 752

178 Miss. 69

Ross v. LOUISVILLE & N. R. CO.

No. 32511

Supreme Court of Mississippi

March 1, 1937

Division B

1. MASTER AND SERVANT.

In action in state court under Federal Employers' Liability Act, rules of pleading, practice, and procedure of state control in so far as thereby no substantive right or defense arising under act is lessened or destroyed (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq; Code Miss. 1930, sec. 521).

2 PLEADING.

Statute which declares sufficient a declaration which contains sufficient matter of substance for court to proceed on merits requires that matter of substance should be that which is essentially required to be averred and shown under applicable law (Code 1930, sec. 521).

3 PLEADING.

Statute which declares sufficient a declaration which contains sufficient matter of substance for court to proceed on merits does not change rule that pleadings are to be taken strongest against pleader, and declaration is not to be aided by mere inferences to be drawn from its averments (Code 1930, sec 521).

4 PLEADING.

Under statute which declares sufficient a declaration which contains sufficient matter of substance for court to proceed on merits, facts which are reasonably or necessarily implied from facts stated must on demurrer be considered as true, and when such facts, together with express averments, furnish sufficient matter of substance for court to proceed on merits, and meritorious case under applicable law is thus presented, demurrer is unavailing (Code 1930, sec. 521).

5. MASTER AND SERVANT.

Under common law, applicable to actions under Federal Employers' Liability Act, servant must exercise due care to protect himself against all ordinary and obvious dangers of his work for master who has furnished servant reasonably safe working place and appliances (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq.).

6. MASTER AND SERVANT.

Under common law, applicable to actions under Federal Employers' Liability Act, so far as reasonably practicable, master must warn servant or erect guards or so control method of work as to obviate danger to servant whose work contains hazards against which servant cannot protect himself by exercise of due care (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq.).

7. MASTER AND SERVANT.

Railroad held not excused from liability under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, by fact that railroad had no control over express trucks, since railroad could have refused to pull express cars to point where maneuvers of express trucks were made unless express company desisted from dangerous method of operation (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq.).

8. NEGLIGENCE.

Where occurrence of intervening cause might reasonably have been anticipated, intervening cause will not interrupt connection between original cause and injury.

9. MASTER AND SERVANT.

Count of flagman's declaration against railroad under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, stated cause of action, where alleging that injury resulted from, dangerous unloading methods pursued by railroad and express company together, as against contention that action of express company and its truck was independent intervening cause, since declaration showed case of concurrent negligence, as to which each of concurring tort feasors is liable (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq.; Code Miss. 1930, sec. 521).

10. MASTER AND SERVANT.

Count of flagman's declaration against railroad under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, stated cause of action, as against contention that allegation that it was necessary for flagman to keep looking to rear during maneuvers in order to aid spotting of cars was manifestly untrue and that he could have looked out for himself, since matter was not one for judicial notice, but was for jury (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq.; Code Miss. 1930, sec. 521).

11. MASTER AND SERVANT.

Count of flagman's declaration against railroad under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, stated cause of action, as against contention that declaration showed that flagman assumed risk, where declaration alleged that flagman had complained of danger and railroad's authorized agents had promised to discontinue dangerous features of maneuvers and that flagman relied on such promise on occasion of injury (Federal Employers' Liability Act, 45 U.S.C. A., sec. 51 et seq.; Code Miss. 1930, sec. 521).

HON. W. A. WHITE, Judge.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by R. B. Ross against the Louisville & Nashville Railroad Company. From a judgment dismissing the cause on demurrer, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Carl Marshall and Mize, Thompson & Mize, all of Gulfport, for appellant.

The Federal Employers' Liability Act will govern the principles of this case insofar as it has changed the common law, but except as it modifies the common law the case will be determined subject to common law principles. The declaration is in three counts, and if any one of the counts states a cause of action then the demurrer should have been overruled.

Thames v. Batson & Hatten Lbr. Co., 143 Miss. 5, 108 So. 181.

The purpose of the Federal Employers' Liability Act was not to abridge, but to enlarge the liability of interstate carriers. The act abolishes the fellow servant rule, and abolishes the defense of contributory negligence as a complete bar. But the defense of assumption of risk is still available, except for a violation of the safety appliance act. The safety appliance act is not involved in this ease. The applicable section of the statute is Section 51, Title 45, U.S.C. A. This act provides that every common carrier by railroad engaged in interstate commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, resulting in whole or in part from the negligence of any of tim officers, agents, or employees of such carrier, due to its negligence.

In the case of I. C. R. R. Co. v. Skaggs, 240 U.S. 66, 60 L.Ed. 528, it was held that recovery under the act was supported by evidence upon which it could be found that a fellow servant was negligent, and that thereby the injury complained of resulted, although the employee himself may have participated in the act.

In the case of Chicago-Rock Island Railroad Co. v. Wright, 239 U.S. 548, 60 L.Ed. 431, the court held that it was a question for the jury to determine as to the negligence of the company where it was shown that a switch engine was run on the main track through a deep and curved cut at such a rate of speed as to endanger the extra, which the switching crew knew might be coming through the cut on the same track about the same time. The petition in that case case alleged negligence on the part of the defendant to provide a suitable rule regulating the speed and movement of its switch engines through the cut.

In the case case of K. & M. R. R. Co. v. Kerse, 239 U.S. 576, 60 L.Ed. 448, it was held that it was actionable negligence for a company through its employees to conduct its switching operations upon a private switch obstructed in such a manner as to endanger the lives of brakemen upon its cars.

In the case of Southern Ry. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030, the court held that the rights and obligations under the employers' liability act depend upon those statutes and the applicable principles of common law as interpreted and applied in the federal courts.

In the case of Union Pacific Ry. Co. v. Huxoll, 245 U.S. 535, 62 L.Ed. 455, the court held that evidence tending to show that while the engineer of a backing switch engine which ran down another employee who was walking between the rails in a cloud of steam and smoke did not see the man struck, but was notified almost instantly, but continued to go for 135 feet after striking him, was sufficient to justify the submission of the case case to the jury on the question of whether a defective power brake contributed in part to the death.

Rocco v. Lehigh Valley R. R. Co., 288 U.S. 275, 77 L.Ed. 743; Reed v. Director General of Railroads, 258 U.S. 92, 66 L.Ed. 480; Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838; Gila Valley G. & M. R. R. Co. v. Hall, 232 U.S. 94, 58 L.Ed. 521; Chicago-Rock island Ry. v. Ward, 252 U.S. 18, 64 L.Ed. 421; NewYork Central v. Carr, 238 U.S. 260, 59 L.Ed. 1298; Jamison v. Encarnacion, 281 U.S. 635, 74 L.Ed. 1082.

In the case of Alabama Great Southern R. Co. v. Williams, 37 So. 255, 140 Ala. 230, it was held that under the Employers' Lability Act, a defendant is liable where the plaintiff, while in a perilous position on the train, was seen by the engineer in charge, who knew of the plaintiff's danger, but made no effort to save him.

Choctaw Oklahoma & Gulf Ry. v. McDade, 191 U.S. 64, 48 L.Ed. 96.

Analyzing the declaration in the light of this authority and in view of the authorities hereinbefore cited, it is apparent that a case of negligence is clearly stated in the declaration....