White v. Louisville, N.O. & T. Ry. Co.

• Decision Date: 22 October 1894
• Citation: 16 So. 248,72 Miss. 12
• Parties: HONORA WHITE v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO
• Court: Mississippi Supreme Court

16 So. 248

72 Miss. 12

HONORA WHITE v. LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO

Supreme Court of Mississippi

October 22, 1894

FROM the circuit court of Warren county. HON. J. D. GILLAND Judge.

The facts are stated in the opinion.

Reversed and cause remanded.

Magruder & Bryson, for appellant.

1. The right of recovery, in this case, does not rest on our constitution, but on the common law liability of defendant for failure to provide safe machinery and appliances for its employes; and upon the statute giving the parent the right to sue. The liability existed before the constitution, and is independent of it.

2. The death was caused by the defective coupling appliances. The bumpers were broken off and the drawhead played loose because the spring holding it in place had been taken out or lost. The cars were of different heights, and this prevented coupling in the usual way. That this constituted negligence on the part of the company, see Le Clair v. Railroad Co., 20 Minn. 9; 2 Thompson on Negligence, 972; 14 Am. &amp Eng. Enc. L., 848; 43 Ill. 338; 71 Ib., 295; 18 N.Y. 225. There is no evidence that Gale knew of these defects, nor is there any evidence that the condition of the appliances was obvious. It cannot be presumed that he knew of these several defects.

3. The violation as to the rule of the company as to the use of coupling sticks will not defeat a recovery. It is shown that. observance of the rule would not have prevented the accident. Disobedience of a rule should not forfeit the right to recover, regardless of whether it occasioned the injury. It is evident that failure to use the stick was not the proximate cause of the injury. It is clear, from the evidence, that the coupling could not be done with the stick. 75 Iowa 683; 14 Am. & Eng. Enc. L., 908. Railroad Co. v. Rush, 71 Miss. 987, does not apply. It is shown that the rule was habitually disregarded. It was impracticable, and never intended to be observed. It is competent to show this, in order to show acquiescence by the company. 30 Minn. 234; 98 Mo. 62; 32 Am. St. R., 395.

Mayes & Harris, for appellee.

1. This is an action, by a mother, to recover for the death of her adult son. Plaintiff had no right of action after the adoption of constitution of 1890. 70 Miss. 471; 69 Ib., 848; 63 Ib., 509.

2. Deceased, when injured, was violating a known rule of the company in failing to use the coupling stick. Some evidence, it is true, was offered to show a disregard of the rule by the employes, but this could not affect the case. Railroad Co. v. Rush, 71 Miss. 987; 51 Ib., 637. Deceased was attempting to make a coupling on a curve, and, even with good drawheads, coupling is there much more difficult than on a straight track. Tuttle v. Railroad Co., 122 U.S. 189. While there is some testimony to the effect that the drawheads were out of order, it is a mere matter of conjecture how deceased was killed. The burden was on the plaintiff, and it is not shown whether the catastrophe was caused by want of the spring in the drawhead, or by the drawhead playing loose, or the curve on the track, or the failure to use a coupling stick; nor does it appear whether deceased was otherwise negligent. The peremptory instruction was therefore proper. 70 Miss. 332; 69 Ib., 848; 61 Ib., 468; Ib., 417.

3. Plaintiff's right of recovery, if it exists at all, is given by the constitution of 1890, which gives a right of recovery to employes which did not exist at common law, where injury is caused by defective appliances, as well as when it is caused by negligence of a fellow-servant. The rule laid down in Railroad Co. v. Hunter, 70 Miss. 471, cannot be confined to cases where the injury causing death resulted from the negligence of a fellow-servant. The provision of the constitution undertook to deal with the whole subject, and regulate rights of action in all cases of injury to employes of railroad companies. The reasoning in Railroad Co. v. Hunter applies with equal force where the injury occurs from defective appliances as when the negligence is that of a fellow-servant. Therefore, the right of action, in cases like this, must be confined to the legal representative.

OPINION

WHITFIELD, J.

This is an action brought by appellant, as mother and sole surviving parent, to recover damages for the loss of support and maintenance. She had a right, reasonably, to expect her son, the party killed, would continue to provide for her during his natural life, the declaration--which is drawn with great care--alleging that, in his lifetime, he had helped to support and maintain her, and the mother testifying that it was the son's regular habit to turn over to her, on drawing his wages, fifty dollars per month. The ground of liability is the common law duty of the appellee to provide safe machinery and appliances for its employes. The remedy to enforce this liability in favor of appellant, in the case made in this record, is based properly on § 663, code of 1892. The negligence alleged is not the negligence of a co-employe, but the negligence of the company itself. Railroad Co. v. Hunter, 70 Miss. 471, 12 So. 482, therefore, does not apply. The ground of liability on which this case is rested existed before the constitution of 1890, and is wholly independent of it. That instrument did not take away any existing ground of liability; it added new ones theretofore denied by our laws. The single question here is, could the son, had he survived, have maintained an action? If so, then, under § 663, code 1892, the appellant can. Meyers v. King, ante, p. 1. The respects in which the appliances and machinery are charged to have been defective are, first, that the bumpers were broken off the freight car, which, it is alleged, would otherwise have prevented the collision to the extent of their projection--six or seven inches; second, that the drawheads were defective, the Miller drawhead having had the spring belonging in it taken out, so that it played loose, and did not meet the drawhead of the freight-car squarely, but was pushed to one side, the drawheads thus passing each other, and the cars crashing together; third, that the cars were defective in this, that they had different kinds of drawheads, and that there was a difference in the height of the cars of one inch, which prevented, as alleged, the coupling in the usual way, so that the deceased failed in guiding the coupling pin to its place.

At the conclusion of the testimony, the court gave a peremptory charge for the appellee. There was a motion for a new trial, which was overruled, and the errors assigned here are the granting of this peremptory instruction and the overruling of the motion for a new trial.

As regards the "bumpers" there was testimony as follows: "The bumpers, which are iron projections on the end of the freight car, on each side of, and close to the drawhead thereof, project six or seven inches; they are intended to keep the car from coming in too close contact with the other cars to which it is to be coupled, but were broken off of the flat car at the end Of which the coupling was made; that these bumpers are used on the defendant's road; that the flat car was out of repair, because there were no bumpers on the end" where the coupling was attempted to be made; that these bumpers "on the ends of the cars would keep them apart," and "protect the drawheads from injury," and would have kept "the cars from getting too close together if there had been any on the flat car;" and it was shown that Gale, the deceased, was "a little, slight man, weighing about one hundred and twenty or twenty-five pounds."

As regards the Miller drawhead, it was testified that it was provided with a spring, on the left-hand side on this coach intended to press the Miller drawhead over towards the right, so that the point of it would be exactly in the Center of the car, but that this spring had been taken out of the Miller drawhead on this coach, and, for want of it, this coach was not in running order, or in fit condition to use, but ought to...