Vicksburg, Shreveport & Pacific Railway Company v. Barmore

• Decision Date: 05 February 1906
• Citation: 39 So. 1013,87 Miss. 273
• Parties: VICKSBURG, SHREVEPORT & PACIFIC RAILWAY COMPANY v. THOMAS B. BARMORE
• Court: Mississippi Supreme Court

39 So. 1013

87 Miss. 273

VICKSBURG, SHREVEPORT & PACIFIC RAILWAY COMPANY v. THOMAS B. BARMORE

Supreme Court of Mississippi

February 5, 1906

November 1905

FROM the circuit court of Warren county, HON. OLIVER W. CATCHINGS Judge.

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

The case was once before in the supreme court, and is reported --Barmore v. Vicksburg, etc., Ry. Co., 85 Miss. 426 (S.C., 38 So. 210).

The facts were these: One Watson, an employe of the railway company, was furnished by his employer with a railway tricycle with which to perform certain duties. It was much controverted on the first trial of the case, and upon the first appeal before the supreme court, whether or not Watson on the occasion in question was acting within the scope of his employment, but it was decided by the supreme court, when the case was first before it, that he was so acting. As he was driving or riding his tricycle along appellant's railroad track, in the state of Louisiana, he passed upon a trestle, some sixteen hundred feet long, under which there was much water, and over which the plaintiff, Barmore, was passing on foot. Watson drove the tricycle violently and recklessly, according to the plaintiff's evidence and as found by the jury, against and upon and over the plaintiff knocking him down on the trestle. It was shown in evidence that Watson said, after the incident, that he saw Barmore before striking him, thought he was a "damned coon," and tried to make him jump into the water. Barmore was seriously hurt.

Judgment affirmed.

McWillie & Thompson, for appellant.

It is a hardship on the master to be held liable, and especially for punitive damages, because of the willful and wanton conduct of an unfaithful servant. Originally such liability was not recognized. Our fathers thought there was no liability of the master if the guilty servant was actuated by his own malice. We do not complain of the departure from the old rule. When, under the new rule imposing liability on the master for injuries inflicted by the malice of a servant, the defense of contributory negligence on the part of the injured party is taken away because of that malice, the proceeding in its consequences on the master is analogous to that which the devotees of Old Sledge denominate "cross lifting." It is the combination of the two ideas of which we complain. The law has been modernized to the full extent compatible with justice when the master is held liable for the malicious tort of his unfaithful servant. If that same malicious tort be made to do service not only in creating a cause of action against the master, but also in destroying the defense of contributory negligence on the part of the injured party, a great injustice will be done.

We propound the proposition that if Watson willfully ran the tricycle towards Barmore with intent to strike him, and if Barmore, seeing what was being done, could easily have stepped to one side (and it is apparent that he could have done so) and thereby saved himself from harm, the railway company is not liable. If the suit were against Watson, there might be a shadow of reason for saying that contributory negligence shall be no defense, but there is none when the suit is against the master.

In this case Barmore was guilty of more than mere contributory negligence. A jury would have been...