Southern Ry. Co. v. Cheaves

• Decision Date: 23 May 1904
• Citation: 84 Miss. 565,36 So. 691
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. IRA F. CHEAVES

36 So. 691

84 Miss. 565

SOUTHERN RAILWAY COMPANY v. IRA F. CHEAVES

Supreme Court of Mississippi

May 23, 1904

FROM the circuit court of Lowndes county. HON. EUGENE O. SYKES Judge.

Cheaves the appellee, was plaintiff, and the railway company defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The case was before in the supreme court on the appeal of the plaintiff, and the decision then rendered is reported. Cheaves v. Southern Railway Co., 82 Miss. 48 (33 So 649; 34 So. 385).

Plaintiff was a fireman, and was injured by the collision of two trains at Columbus, Miss. caused by the negligence of the engineer in charge of the engine on which plaintiff was a; work, in going to sleep. The evidence showed that there was a train standing alongside the station at Columbus, on what was known as the "house track," ready to go out. An incoming freight train of thirty-five cars from the east, being pulled by the engine on which the plaintiff and the sleeping engineer were, crashed into the one standing on the switch at a rate of speed variously estimated at from fifteen to thirty miles per hour. There was a whistle board about a mile east of the Columbus depot, at which it was the duty of the incoming engineer to blow the whistle and slow up to a speed not exceeding ten miles an hour, with his train under complete control. There was a sidetrack six hundred yards east of the station, on which all freight trains from the east went. Columbus was a terminal station, and the engine when brought in, was turned over to a hostler, and the yardmaster, with the yard engine, took charge of the train. There were five public crossings between the whistle board and the sidetrack, at all of which the whistle should have been blown and the bell rung. This was not done, and the train came in without warning of any kind. The yardmaster, who was in the eastern part of the yard, tried very hard to flag the train, but his efforts were not heeded. When this east-bound train left Steen's, the nearest station east of Columbus, eleven miles away, the engineer told the plaintiff to keep the engine red-hot; he was going in. This was the last word spoken by the engineer to the fireman. There were verdict and judgment for the plaintiff for $ 7,500. Defendant's motion for a new trial was overruled. The opinion of the court contains a further statement of the facts.

Judgment affirmed.

A. F. Fox, for appellant.

Even if the engineer is in some sense the superior officer, having the right at times to control or direct the services of the fireman, still, in the sense of the constitution, he must, in order to make the employer liable, be in the exercise of that control or direction of the fireman's services at the time of the injury, and that control or direction of the fireman's services must be the proximate cause, the causa causans, of the injury.

This court, in the case of Farquhar v. Railway Company, 78 Miss. 199, not only recognized the doctrine of fellow-servants as still existing, but approved its wisdom by declaring that "society, in its most refined and elevated conditions, requires its continuance." So there can be no prejudice against the principle in considering the relative duties and obligations of master and servant. Sec. 193 of the constitution will not in its construction be extended by implication beyond its evident and plain import. This court, in the case of Evans v. Railway Company, 70 Miss. 530, expressly deprecates enlarging this constitutional provision by interpretation, declaring the fact to be incontrovertible that the purpose of the framers of the constitution was only to modify the doctrine to a certain extent, and that extent was carefully expressed in sec. 193. In this case the court says that this constitutional provision has reference to a superior agent or officer of the sort, well known as such, and any other person in the company's service, by whatever name, who may be entrusted with the right to control and direct the services of others, according to his discretion and judgment, one to whom is committed the direction or control of others for the accomplishment of some end, dependent on his independent orders born of the occasion, sprung from him as director, and not consisting of the mere execution of routine duties in pursuance of fixed rules by various employes, each charged with different parts in the general performance. This case is fully reviewed and approved by United States court of appeals in Fenwick v. Illinois, etc., R. R. Co., 100 F. 247.

The soundness of this view is apparent, and if this court is to adhere to it, it must be held that an engineer and fireman are fellow-servants. The evidence in this case discloses no authority in the engineer to direct the services of the fireman according to his discretion. The engineer had no discretion. He acted under fixed and definite rules in the operation of the engine, and only had authority to direct the fireman, not according to his discretion, but according to fixed rules prescribed by a common master for the guidance of both operating together in running the engine.

It would be absurd to say that the engineer had any authority to control the fireman "for the accomplishment of some end dependent on his independent orders." The engineer can give no independent orders, and did give none in this case. On the contrary, all orders given by him to the fireman consist, in the language of Justice Campbell, "in the mere execution, of routine duties in pursuance of fixed rules." In the operation of the engine the engineer simply communicates to the fireman according to these rules. It is clear under the statement of Engineer Graham Jones that the fireman was no menial employed to wait on the engineer and do his bidding, obeying his independent orders; he was employed by the same master by whom he was paid, and to whom, in consideration of his salary, he was under a responsibility fully commensurate with that of the engineer to run the engine, protect the company's property, his own life and those of his fellow-servants. His duties were in the same line as those of the engineer. He was the helper, and as such he had become, according to his own testimony, a competent engineer; in fact, it is the design of these rules to train firemen in all the duties of the engineer, so that they will in time be promoted to that position.

When he neglected to look out for signals, and allowed the train to run into Columbus in such a reckless way, he was guilty of a wanton and willful violation of the high duty he owed to his employer and to the public, and it is unthinkable that a court of justice will compel an employer to reward any employe for such outrageous, criminal conduct. Dantzler v. De Bardeleben Coal & Iron Co., 101 Ala. 309 (22 L. R. A., 361); 2 Bailey, Personal Injuries, 749; Haynes v. R. R. Co., 3 Cold., 222; Illinois, Etc., R. R. Co. v. Hooley, 45 Ill.App. 205; Mulligan v. R. R. Co., 19 Montana, 135.

Some relation of cause and effect between the right of the engineer to control the services of the fireman, and the injury sustained by the fireman, must be shown. The engineer must have been at the time of the injury in the exercise of that authority and that control of the services of the fireman, which exercise of authority and control must have been the proximate cause of the injury sustained by the fireman. We do not contend that the authorities are uniform on this question, but insist that all reason and logic and sound principle are in the support of our position and of the authorities which we shall now cite. In the case of B. & O. R. R. Co. v. Baugh, 54 Am. & Eng. R. R. Cas., 328 (149 U.S. 367), in which it is held that an engineer and fireman are fellow-servants even in the absence of the conductor, in which case, according to the rules of the company, the engineer is to be considered as conductor, the court said: "It may further be noticed that in this particular case the injury was not in consequence of the fireman's obeying any order of his superior officer. It did not result from the mere nature of control. It was through negligence on the part of the engineer in running his engine, and the injury would have been the same if the fireman had had nothing to do on the locomotive and had not been under the engineer's control."

In the case of N., C. & St. L. R. R. Co. v. Wheeless, 10 Tenn. 74 (15 Am. & Eng. R. R. Cas., 315), in which it is held that the engineer is the fellow-servant of the brakeman, the court says: "The principle upon which our rule is based--to wit, that the master will be liable for injuries resulting to one servant from the negligence of another servant who is the immediate superior of the first--is based, not upon the idea of the relative rank of the two servants or the general superiority in position, intelligence, or skill, or in the wages received, but upon the ground that the one is placed under the orders and direction of the other, and required to submit to and obey such orders in the performance of his duties. The plaintiff cannot in any fair sense be said to have been acting in this particular matter under the orders either expressed or implied of the engineer, and the mere fact that the engineer was the superior of the plaintiff in position, skill, intelligence, and pay does not change the result."

In the case of the Chicago & Alton R. Co. v. May, 15 Am. &amp Eng. R. R. Cas., 320 (Ill. case), it was held that the mere fact that one of a number of servants who are in the habit of working together in the same line of employment for a common master has power to control and direct the action of the others with respect to such employment will not of itself render the master liable for the...