Yazoo & M.V.R. Co. v. Woodruff

• Citation: 53 So. 687,98 Miss. 36
• Decision Date: 28 November 1910
• Docket Number: 14664
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD Co. v. J. H. WOODRUFF
• Court: United States State Supreme Court of Mississippi

53 So. 687

98 Miss. 36

YAZOO & MISSISSIPPI VALLEY RAILROAD Co. v. J. H. WOODRUFF

No. 14664

Supreme Court of Mississippi

November 28, 1910

APPEAL from the circuit court of Wilkinson county, HON. M. H WILKINSON, Judge.

Suit by J. H. Woodruff against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Mayes &amp Longstreet, for appellant.

It is settled by decisions of this state, that a railroad employe is not entitled to recover for injuries resulting from a defect in a tool used by him in the customary manner, using the same, which was a new one, of a kind in general use by railroads, and had been procured of a reputable manufacturer and was regarded as sound by the employe himself, a man experienced in the use of such tools. Kent v. R. R Co., 77 Miss. 494.

And in Clisby v. Mobile, etc. R. R. Co., 78 Miss. 937, this court held that a railroad company is not required to have the safest and best known appliances; that it may provide those in common use, of approved pattern and in reasonably safe repair.

In R. R. Co. v. Blockman, 87 Miss. 192, a case much like the one at bar, it was held that a railroad company is not liable to an employe for purely accidental injuries. That case was one where an engineer whose locomotive had become stopped by the loss of a valve key while on a run, directed a fireman, subject to his control, to hold the light so that he could drive a file into the key-hole, thereby enabling the locomotive to do its work; and splinters flew from the file each time he struck it with a hammer, one of them entering the fireman's eye, and injuring him.

In Jones v. Y. & M. V. R. R. Co., 90 Miss. 547, it was held that where the machinery of the railroad company was of a kind in general use, approved by the experience of many railroads and neither defective nor unsafe, the company was not liable for a death resulting from it use, notwithstanding a promise to substitute other and safer machinery, which might have prevented the accident.

It is not necessary to array other authorities from other states, of which there are many, to these points. The law is settled by the adjudication of this court.

The Defect in the Lubricator.--It is claimed that there was a defect in this appliance, for the reason that the spiral guard was not sufficiently safe, etc. We have already argued out that question above. But there is this further point. For purposes of the argument, even conceding that proposition, still the plaintiff cannot recover, for the reason that by his own testimony he shows that he knew all about these appliances; that for years and years he had run engines fitted with the tubular lubricator and the spiral guard; that he had been a practical engineer for nineteen years; that he had been running this particular engine for five months; that he himself had put in this particular tube, and that it seemed to be all right, as he selected it out of a number of others; and he utterly fails to show that he had ever made any objection to the spiral guard, or evidenced any desire to have any other sort.

Green & Green, for appellee.

The effort of appellant to have this court reverse this cause because of the refusal of a peremptory instruction upon the ground of assumption of the risk, or the voluntary operation of dangerous or improper appliances, under section 193 of the Constitution, falls under the condemnation of Railroad v. Scraag, 84 Miss. 155, and especially, Railroad v. Minor, 69 Miss. 710, 719, where it was insisted as here that the evidence showed that appellee was barred of recovery by the maxim, "Volenti non fit injuria," and that the peremptory instruction should have been given, and the court while holding that the evidence sustained the defense, held that the question was not presented in the court below, nor such issue tried by the jury, and that the court would not reverse.

The "assumption of risks arising from the negligence of defendent is an affirmative defense which the defendant must plead in answer and sustain by a proper preponderance of the evidence." Mace v. Bodeker, 127 Ia. 721, 731, 104 N.W. 475; M. K. & T. R. R. v. Jones, 35 Tex. Civ. App. 584, 589; Int. G., etc. R. R. v. Harris, 95 Tex. 346, 350; 1 Thompson Com. Neg., par. 368.

The proof shows beyond question the negligence of the master. The lubricator in evidence shows that it was equipped by the manufacturer with a semi-circular shield, fitted in the slot, for the protection of the employe on the engine against explosion of these glass tubes, and, hence, to provide a safe place to work, and that defendant's mechanical department took off, or if taken off by some employe (of which there is no evidence), that defendant replaced this necessary protective shield with a loose wire coil, without any fastenings, and which by an explosion would be blown out, and thus the master did not furnish the appliance with the standard of safety provided by the manufacturer, but substituted an inferior device of its own--made in its own shops--merely this wire coil.

Again, the glass tubes furnished were apparently good, but the master was negligent in furnishing those glass tubes without test of tensile strength, and, then in ignorance of the amount of pressure the tubes would bear, prescribed that this engine might carry one hundred and fifty pounds of steam, and, thereby, that this amount of pressure be put upon this indicator glass tube, and when it exploded under the pressure of one hundred and forty-five pounds and did the injury. Stafford v. Railroad, 8 Amer. Neg. Rep. 431, is directly in point. There the plaintiff sued for injuries caused by the explosion of a lubricator tube, and recovered a judgment.

And the court there refused to hold that a peremptory instruction should be given and this case is conclusive of the case at bar.

The cases as relied on by appellant, Jones v. Railroad, 90 Miss. 547; Clisby v. Railroad, 78 Miss. 937, and Kent v. Railroad, 77 Miss. 494, are inapplicable.

In Jones v. Railroad, 90 Miss. 547, cited the appliance was an approved appliance, "neither defective nor unsafe." Here the appliance was defective and unsafe.

In Clisby v. Railroad, 78 Miss. 937, cited, the appliance was neither defective nor unsafe. They were there proven to be "those in common use, of approved patterns and in reasonably good repair."

In Kent v. Railroad, 77 Miss. 494, cited, the appliance had been purchased of a reputable manufacturer, was in general use, and had been inspected and approved as sound and the defect was a hidden one, and the appliance as furnished by the manufacturer and according to his standard of safety was used, but here the shield furnished by the manufacturer was removed, and defendant's own device was substituted.

And so we have a case tried on appropriate instructions applicable to the facts, and in which the jury have determined that defendant was guilty of negligence, and that plaintiff was not guilty of contributory negligence, proximately contributing to the injury.

It is hardly necessary to refer to the number of cases, commencing with the Stevens case, holding that it is a rare case of negligence that should be taken from the jury, and this particularly applies when the question of the master's duty to furnish safe and suitable appliances is in issue, and also whether the plaintiff acted as a reasonably prudent man would act under the circumstances.

If the court, however, should inquire further into this case, then upon the law and facts, the judgment should be affirmed.

The effort of counsel for defendant was, to show that with knowledge of the risk, plaintiff voluntarily assumed it, and, hence, under the doctrine of the assumption of the risk, plaintiff would be barred recovery.

Under section 193 of the Constitution, the doctrine of the assumption of the risk is entirely changed, viz.: "Knowledge by an employe injured, of the defective or unsafe character of condition of any machinery, ways, or appliances, shall be no defense to any 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 follows the rule set forth in 4th Thompson's Conn. Neg., § 4614: "The servant does not accept the risk from dangers which arise from the negligence of the master, although the servant knows of the dangerous conditions and continues in the employment notwithstanding such knowledge. According to the theory the ordinary risks of the service are such, and such only, as remain after the employer has used all reasonable means to prevent them; and he is hence liable to the employe for injuries resulting to the employe from risks arising alone from the master's negligence."

There are cited in the note several cases, among them, McGovern v. Railroad, 125 N.Y. 280; Frye v. Gas Co., 94 Mo. 17, holding that the servant does not assume the risk from defects in the plant itself, which the master is bound to make and keep reasonably safe; Rhoades v. Varney, 91 Mo. 222; Himrod Coal Co. v. Clark, 197 Ill. 514, affirming 99 Ill.App. 332; Swenson v. Bender, 114 F. 1, wherein it is held that the servant does not assume the risk from the failure of the master to exercise reasonable care in furnishing him a safe place in which to work; Soley v. So. Pac. Co., 6 Utah 319, that the failure to use safety frogs is not an ordinary risk of railroad employes, and this court has held that a railroad company is liable for an injury from an unblocked frog.

The foregoing rule does not eliminate the defense of contributory negligence, but the latest interpretation of contributory negligence under this section,...