St. Louis & S.F.R. Co. v. Guin

• Decision Date: 12 April 1915
• Docket Number: 16792
• Citation: 109 Miss. 187,68 So. 78
• Parties: ST, LOUIS & S. F. R. CO. v. GUIN
• Court: Mississippi Supreme Court

68 So. 78

109 Miss. 187

ST, LOUIS & S. F. R. CO. v. GUIN

No. 16792

Supreme Court of Mississippi

April 12, 1915

APPEAL from the circuit court of Lee county. HON. CLAUDE CLAYTON Judge.

Suit by E. T. Guin against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals.

This is an appeal from a judgment for ten thousand dollars for injuries received by appellee while in the employ of the appellant railroad company. The opinion states the facts. On the trial the court below gave the following instructions at the request of the plaintiff:

"(1) The court charges the jury that the railroad company is responsible for injuries to a servant brought about by its own negligence or misconduct, and the law is imperative in demanding that railroad companies shall furnish their employees engaged in the hazardous work of coupling and pushing cars safe and sufficient appliances.

"(2) The court charges the jury that it is the duty of the railroad company to furnish its servants and employees a reasonably safe place to work, and is under a duty to furnish such servants or employees with materials, tools, or appliances suitable for the performance of the service required of them.

"(3) The court charges the jury that it is the duty of the railroad company to furnish its servants and employees safe machinery and appliances with which to work, and a failure so to do is negligence on the part of the company.

"(4) The court charges the jury that, if they find for the plaintiff, then you should award such damages as the evidence shows he has suffered, not exceeding the amount named in the declaration, and in estimating such damages you may take into consideration the permanent injury to the plaintiff, if any the shock to his system, if any, his physical and mental pain and suffering, and a fair recompense for loss of what he might otherwise have earned, and has been deprived of the capacity for earning, by reason of the injury.

"(5) The court charges the jury that, even though they may believe from the evidence that plaintiff placed himself in an unsafe place and was thereby guilty of contributory negligence still this does not of itself bar a recovery, but it simply goes to the jury in mitigation of the damages."

Affirmed.

J. W Buchanan, for appellant.

The law, as I understood it for years prior to the statute doing away with the doctrine of fellow-servant and putting employees on the same footing with others, when an injury to them occurred by the negligence of the railroad company, recognized fully the assumption of risks incident to his employment when he entered the service of the railroad company. One of the risks incident to the employment was that the railroad company would not be liable for the negligence of a fellow-servant, and again, where an employee was injured by the defective or unsafe character or condition of machinery, ways or appliances, or the improper loading of cars, when he knew by experience or otherwise of the character and condition of the machinery, ways and appliances, and continued in the service after his knowledge of these defects.

Believing, as we did, that this statute did not change the law, so far as conductors or engineers in charge of dangerous or unsafe cars or engines, when voluntarily operated by them, we filed a plea setting up the fact that the appellee stood in the relation of conductor as foreman of the engine and night yardmaster at the time of this injury. Besides, the appellee, in his complaint, states that he was yard conductor, and engine foreman, and the evidence all shows that the foreman of the engine was in control of the crew, and bore the same relation to the crew as a conductor bears to the crew when on the line of road.

The statute certainly meant something when it is said that "knowledge of an employee injured by the defective or unsafe character or condition of any machinery, ways or appliances, or of the improper loading of cars, shall not be a defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or enginees voluntarily operated by them."

We submit that, under this statute, admitting that the engine was defective when the appellee was attempting to move it--and it is in evidence and not denied that he knew the exact condition of this engine--and if he operated or attempted to operate this engine in its then condition, we submit that under the law he assumed all the risk incident to the operation of this defective engine; and we submit that the demurrer to this plea should not have been sustained, and that appellee should have been required to answer the same, and this matter submitted either to the court or to the jury as to whether or not there was any liability for the injury received by the appellee.

It seems that the court below and the attorneys for appellee from the demurrer filed to our second plea, and the charges of the court for the appellee, must have confused contributory negligence and the assumption of risk.

That there is a well understood difference between assumption of risk and contributory negligence has been declared by the supreme court of the United States and by the federal courts in many cases. Railroad v. McDade, 191 U.S. 68; Schelmmer v. Railway Co., 220 U.S. 595; Randall v. B. & O. R. R., 109 U.S. 478; Tuttle v. Railway Co., 122 U.S. 189; Southern Pac. Ry. Co. v. Sealy, 152 U.S. 145.

The court of appeals for the sixth district has repeatedly noticed the difference between contributory negligence and assumption of risk. Nelson v. Southern Ry., 158 F. 92, 85 C. C. A. 560; Railway v. Hennessey, 96 F. 713, 38 C. C. A. 307.

To the same effect are the other adjudications of the federal courts. Crookston v. Boutin, 149 F. 680, 69 C. C. A. 360; St. Louis Cordage Co. v. Miller, 126 F. 495, 61 C. C. A. 477; 11 Bailey on Personal Injury, sec. 354; Railroad Company v. Penn, 191 F. 682, and Narramore v. Cleveland, C. C. & St. L. Ry. Co., 96 F. 298, 301, 37 C. C. A. 499, 501, 48 L. R. A. 68.

I call the court's attention to the foregoing authorities to show that the assumption of risk was not abolished by the Employers' Liability Act of 1908. I do this as we find that attorneys in these cases claim that they are seeking to make the railroad company liable under the Employers' Liability Act on the theory that the assumption of risk was abolished by said act, and I quote these authorities to meet this supposed objection.

In the case at bar we submit that the statute of 1908 makes an exception as to conductors and engineers who voluntarily operate defective appliances, and relieves other employees from the assumption of risk.

We hold that under the Employers' Liability Act the appellee in this case assumed the risk. We hold that under the laws of Mississippi, as modified by the Code of 1906, and Acts of 1908, the law remains, as far as engineers and conductors are concerned, the same as the old law, and rather, the common law.

I call the court's attention to the case of Hatter v. R. R. Co., 69 Miss. 647, to an opinion by Justice COOPER in regard to the assumption of liability. The federal court decisions referred to before, show in what cases the employees assumed the risk, regardless of whether they were conductors or engineers, but in the case at bar we assume that the statute relieves conductors and engineers from the assumption of risk except in the cases mentioned in said act.

Geo. T. Mitchell, for appellee.

The sole purpose of appellant in its second plea, as admitted by counsel in their brief, was to hold appellee, as a conductor, within the provisions of that section of the Constitution above cited. Counsel wholly misconceives the purpose of the makers of the Constitution in inserting that most wholesome provision therein, for it is quite evident that their purpose and intention was to cause engineers and conductors to be more careful, and to prohibit them from knowingly operating unsafe cars and engines under penalty of being barred from recovery in case injury happened to them. This provision in our Constitution was inserted on the ground of public policy, more especially for the protection of the lives of passengers. Railroad Company v. Guess, 74 Miss. 170.

This court, in the case of Railroad Company v. Parker, in holding that part of the Constitution did not apply to a section foreman, in speaking through Judge TRULY, says: "The exception referred to is applicable solely to "conductors and engineers" as those terms are generally understood. The reason of the exception was the hope of instilling into the minds of the specially excepted operatives a feeling of extra caution, by denying them the right of recovery which was expressly granted other employees who might operate other machinery with full knowledge of its dangerous and defective condition. This provision of the Constitution was based upon grounds of public policy and was designed for the protection of human life, so often solely dependent upon the care, caution and skill of engineers and conductors. The very terms of the constitutional provision that knowledge of such defective or dangerous condition should constitute no defense, except as to certain named classes, necessarily conveys the intention of the law not to permit such knowledge to defeat recovery by others. We cannot assent to the contentions that a section foreman in charge of a hand car is a conductor within the meaning intended to be coveyed by the Constitution." Railroad Company v. Parker, 88 Miss. 193; Railroad Company v. Woodruff, 53 So. 687.

It is therefore, not left in doubt as to what the meaning...