Southern Ry. Co. v. Wiley

• Decision Date: 02 July 1906
• Citation: 88 Miss. 825,41 So. 511
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. SAMUEL WILEY

41 So. 511

88 Miss. 825

SOUTHERN RAILWAY COMPANY v. SAMUEL WILEY

Supreme Court of Mississippi

July 2, 1906

FROM the circuit court of Tishomingo county, HON. THOMAS J O'NEAL, Special Judge.

Wiley the appellee, was plaintiff in the court below; the railway company, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Appellee was in the employ of appellant as cranesman, operating a steam shovel used in getting gravel from a pit on a spur track of appellant's railroad. The steam shovel was built on a flat car, and was operated by a stationary engine, which was also located on the car. In operating the crane the cranesman, who manages the shovel, stands on a circular revolving platform at the opposite end of the car from the engine. On the occasion of the injury complained of the appellee was standing on the platform, when the chain which was attached to the crane slipped over the rim of the platform and out of the groove in which it worked, there being no guards to prevent its slipping, and caught him around the ankle and fastened him to the mast post around which the platform revolved, breaking and crushing both ankles, inflicting painful and permanent injuries, and leaving appellee a cripple for life. Appellee sued, alleging negligence on the part of the railway company in not furnishing him with safe and suitable machinery with which to work, instead of worn and decayed machinery; in not providing guards to prevent the chain from slipping; in not having the machinery properly inspected to ascertain the defects and having same repaired; and that his injuries were the direct result of such negligence. A demurrer was interposed to the declaration, which was overruled by the court, when appellant pleaded the general issue, setting up contributory negligence on the part of the appellee, and that appellee knew of the defective and dangerous character of the machinery. This appellee denied in his replication. On the trial the testimony showed that the revolving platform had lowered as a result of the rotting of the bolster supporting it and the worn condition of the washer; that the superintendent in charge of the machinery, one Redman, had reported its condition to the roadmaster, McGinnis, who came to the place where the machinery was in operation, remaining only a few minutes, walked around it and looked it over, and ordered a few bolts tightened, stating that operations could not then be suspended for repairs, but promised to have it sent to the shop for repairs later on, and ordered appellee to go ahead with his work. The case went to the jury on the pleading and evidence, and appellee was awarded damages to the amount of $ 20,000.

Judgment affirmed.

L. E Sawyer, for appellant.

The declaration itself, taken most strongly against the pleader precludes the plaintiff's recovery on the theory of the common-law right to have safe machinery furnished by the master to the servant.

On its face it shows plaintiff's knowledge of the defective and dangerous condition of the machinery. The plaintiff knew the condition of the machinery.

The testimony fails to show that there was any promise made to the plaintiff to repair the machine. There is evidence to the effect of ineffectual attempts at repairs, in which the plaintiff participated, and a statement by McGinnis, roadmaster, to Redman and Smith to go ahead until they got out enough gravel to fill the orders ahead, and then he would take the machinery to the shop.

The rule is, "Where the promise of the master to repair defects of which the servant has complained induces the servant to continue in the employment, he may recover for injuries received within a reasonable time for the repair of the defects, unless the danger is so imminent that no reasonable or prudent man would continue in the service." 20 Am. & Eng. Ency. Law (2d ed.), 127.

A conditional promise will not be sufficient. Wilson v. Winona R'y Co., 5 Am. St. Rep., 851.

A promise to repair after completion of work on hand will not relieve the servant of his assumption of risk. Standard Oil Co. v. Helmick, 148 Ind. 460; McFarlane Carriage Co. v. Potter, 52 N.E. 209; So. Pa. Co. v. Leash, 2 Tex. Civ. App., 68.

The theory that notwithstanding knowledge on the part of the plaintiff, which at common law would be a complete defense, yet in purview of Constitution Miss. 1890, § 193, and the enforcing statutes thereunder, is not of itself and alone a complete defense, is the one principally upon which the plaintiff relies.

(a) Section 193, Constitution Mississippi 1890, and the enforcing statutes thereunder are unconstitutional in that they contravene the fourteenth amendment to the federal constitution, discriminating between individuals and corporations relative to the same class of business. (b) An employe, though of a railroad corporation, engaged in the business of mining gravel, mostly for commerical purposes, is not included in the term "employe" used in said sec. 193. (c) The terms, ways, machinery and appliances as used in sec. 193, and the enforcing statutes, are applied only to ways, machinery and appliances used in the operation of a railroad. (d) The court should hold said sec. 193 unconstitutional; should hold the word "employe" as used in the section applicable to all employes of a railroad corporation, whether engaged in the operation of a railroad or in any other labor not peculiar to the operation of a railroad, and should hold that ways, machinery and appliances that may be used by railroad corporations, whether in the operation of a railroad or other work not peculiar to railroads; yet the plaintiff, an employe of the Southern Railway Company, operating this defective machinery, known as a steam shovel, cannot recover because he knew that the machinery was defective and dangerous and continued to operate it and exposed himself to the dangerous consequences and risks that no careful and prudent man would do. Tullis v. L. E. & W. R. Co., 175 U.S. 348; St. Louis, etc., R. R. Co. v. Paul, 173 U.S. 404; Smith v. Louisville, etc., R. Co., 75 Ala. 449; Ney v. D. & S. R'y, 20 Iowa 347.

W. J. Lamb, on the same side.

If the common-law principles are to prevail in this case, then appellee is not entitled to recover, for the record shows that appellee knew of the defective condition of this machine, and knew it for some time prior to his injury.

The case as made by the appellee seems to be an attempt to hold the defendant liable, both under the common law and under sec. 193 of the constitution of 1890, and Code 1892, § 3559. That part of the statute and the constitution which the appellee contends that gives him the right to recover is as follows: "Knowledge by any employe injured, of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines voluntarily operated by them."

This does not give the appellee a right to recover for the reason:

First--This section of the constitution did not intend to give a special right of recovery to the class of employes the appellee was at the time of the injury, and the law applicable to this case is the same it was before the constitution was adopted and the same principles of law should govern in this case as were applicable under the common law.

Second--Because the steam shovel was not used in operating the railroad and appellee was not doing railroad work in the constitutional meaning of the word, and hence was not an "employe" according to the constitutional meaning of the word.

Third--If the appellee was an "employe" within the constitutional meaning of the word and the constitution should be considered as applicable to work of this character and this class of employes, then the constitution and statute both would be violative of the fourteenth amendment of the federal constitution, for sec. 193 and the statute expressly provide that it is only applicable to employes of any railroad corporation.

In regard to the appellee not being embraced in the class of employes intended by the constitution, we submit that in all states where either by statute or constitutional provisions special rights have been given employes of a railroad corporation, in construing these rights, and to whom they apply, it has been held without an exception to apply only to a certain class of employes and not to every one who may be working for a railroad corporation, and the class of employes given special rights by such statutes or constitutional provisions are those that may be doing work which is inherently dangerous or employes connected with the operations of trains. This appellee cannot come under either class.

This court in the case of Railroad Co. v. Bowles, 71 Miss. 1003 (s.c., 15 So. 138), we think shows clearly the constitution only intended to cover a certain class of employes and that every one who was working for a railroad was not an "employe" within the constitutional meaning of the word. The Bowles case was an action for the death of a switchman caused by a defective car, which had been hauled from near McComb City to the shops at Water Valley, Miss. to be repaired, and the court in deciding this case, said: "If, in the prosecution of its business it had used crippled cars, and an employe required to handle such cars had been injured, the provisions of sec. 193 of the constitution would have applied. But that provision has no application to the case of a car transported over the line of the company to its shops for repairs, and which has reached the place of its destination." Railroad v. Bowles, 71 Miss. 1003 (s.c., 15 So....