Sims v. National Box Co.

• Decision Date: 03 April 1922
• Docket Number: 22378
• Citation: 91 So. 194,128 Miss. 478
• Court: Mississippi Supreme Court
• Parties: SIMS v. NATIONAL BOX CO

91 So. 194

128 Miss. 478

SIMS v. NATIONAL BOX CO

No. 22378

Supreme Court of Mississippi

April 3, 1922

MASTER AND SERVANT. Saw carriage not a "railroad" within statutory fellow-servant rule.

An employee of the owner of a sawmill plant, injured by the fault of a fellow servant, who receives such injury while engaged in the duty of loading logs on a saw carriage used in such plant and in keeping the tracks of such saw carriage cleaned off, which saw carriage is propelled by steam and lever power and is moved back and forth on wheels which run on tracks in the process of sawing logs into lumber, who sues his employer for such injury, does not come within the protection of chapter 194, Laws of 1908 (Hemingway's Code, section 6684, par. 1), the statute abolishing the fellow-servant rule as to injuries received by employees operating railroad, because such saw carriage is not "railroad" within the meaning of said statute but a piece of machinery which is a part of the sawmill plant proper.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Suit by Jesse Sims against the National Box Company for damages for personal injuries. Verdict and judgment for plaintiff, and the defendant appeals. Affirmed.

Affirmed.

Chas F Engle and Clayton D. Potter, for appellant.

The sole question here is whether or not the appellant and his co-employees belong to that class of employees protected by the provisions of chapter 194, of the Laws of 1908, the first section of which is set out above, abolishing the fellow-servant rule as to certain classes of employees.

If the work the appellant was engaged in brought him under the protection of section 1, chapter 194, of the Laws of 1908, he would have been entitled to recover for the injuries he sustained if his evidence was believed by the jury. The court, however, instructed the jury, as the above quoted instruction shows, that if the appellant were injured by the negligence of one of his fellow-servants he could not recover. Therefore, if appellant comes under the provisions of section 1, chapter 194 of the Laws of 1908, and belonged to a class of servants protected by the provisions of that act, then the giving of the instruction to the effect that appellant could not recover if he was injured by the negligence of a fellow-servant was error, and it was also error if such was the case to refuse to grant instructions requested by the appellant to the effect that he was injured by the negligence of his fellow-servants in the employment he was then engaged in he could recover. Then, the question is whether or not the appellant was then and there using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam electricity, gas, gasoline or lever power, and running on tracks. In order to determine this question it is well to set out here a description of the apparatus then being used by the appellant.

The plant of the National Box Company at Natchez is built near the Mississippi River. The logs to be sawed are floated down the river to the plant, and running down to the river on an inclined plane is a track. On this track a truck or car is pulled up the incline from the river by a cable attached to the truck. On this car or truck running on the track on the incline and propelled by steam, the logs are hauled from the river up the incline and placed on what was known as the log deck. From there they were rolled down on what was called the carriage deck, and from the carriage deck they were placed on the carriage and carried to the saw. It was the appellant's job to roll the logs from what was called the carriage deck on to the carriage and to keep the track clean according to his evidence. It was, therefore, on continuous operation from bringing logs from the river to the saw. In other words, when that part of the machinery was in motion, all was in motion.

It is our contention in the first place that the log carriage itself was a car, as is shown by the uncontradicted evidence, running on a track and propelled by steam, and that for that reason the appellant came under the protection of chapter 194 of the Laws of 1908. And secondly, that even if the court would not hold the carriage itself an instrumentality covered by the statute, that at any rate the car conveying the logs from the river up the inclined plane to the carriage deck was such an instrumentality covered by the statute, and that the hauling of the logs from the river and the sawing of same was one continuous operation. In other words, all the employees in and about the establishment, when it was going, were engaged, among other things, in moving the logs from the river to the saw. It will be noted that it was the specific duty of this servant to work on the carriage deck and on the carriage track. But the log in question was rolled directly from the log deck down on the running carriage, and the accident was caused by the negligence of the appellant's fellow-servant who was working on the log deck, that is the man whose duty it was to shock the logs when they were brought up on the little car from the river. In other words, it was the duty of the servant whose negligence caused the accident to unload the little car that ran up from the river hauling the logs up the incline.

In the case of Newman Lumber Company v. Irving, 118 Miss. 62, this court speaking through Judge SYKES held that a skidder, an arrangement worked with levers and cables, and upon which the log was attached to tongs, was a railroad within the meaning of the statute under consideration. Hunter v. Ingram Day Lumber Co., 110 Miss. 745, 70 So. 901; Railroad Co. v. Pontius, 157 U.S. 209; 15 S.Ct. 585, 39 L.Ed. 675.

In the above-quoted opinion it will be noted that the skidder mentioned and declared to be a car under the facts in that case was an arrangement very much like the one here in question, except that the one here more nearly resembled an actual railroad. In that case the skidder merely pulled logs in with tongs, but the arrangement in this case was a real car on a real track, a permanent track. The skidder arrangement was a mere device which could be moved from place to place.

The true test of the statute is that contained in the last paragraph of Judge SYKES' opinion, and that is to the effect that the statute was intended to protect all employees subject to the peculiar hazards incident to the operation of railroads. This small railroad running up the incline was as much a railroad as any other railroad and the cars were propelled by steam and were used for transportation services.

The statute is as broad as language can make it intending to protect all sorts of railroad employees. The statute protects every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline, or lever power, and running on tracks. The car in question was simply a cable car, nothing more, nothing less. The employee in this case who caused the injury to the appellant had charge of shocking the logs right from this small railroad, and it was this servant's negligence that cause this injury.

In the case of Ellis v. Bear Creek Mill Company, 78 So 706, 117 Miss. 742, our court speaking through Judge HOLDEN, held that a tonger, of a lumber mill company, who while loading logging cars on its logging railway, was injured by the negligence of a fellow servant, employed by the mill company in handling logs to the train from the woods, could recover for such injuries, since he was engaged in and about the operation of the logging railway when injured, and although the employment of the fellow-servant may have been in another department of labor, still...