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

• Decision Date: 19 November 1934
• Docket Number: 31429
• Citation: 171 Miss. 619,157 So. 527
• Parties: YAZOO & M. V. R. CO. v. SUDDUTH
• Court: Mississippi Supreme Court

157 So. 527

171 Miss. 619

YAZOO & M. V. R. CO. v. SUDDUTH

No. 31429

Supreme Court of Mississippi

November 19, 1934

Division B

Suggestion Of Error Overruled January 14, 1935.

APPEAL from the circuit court of Lauderdale county HON. J. D FATHEREE, Judge.

Action by Mrs. J. C. Sudduth, administratrix of her deceased husband, J. C. Sudduth, against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Dent, Dent & Robinson, of Vicksburg, Bozeman & Cameron, of Meridian, and Burch, Minor & McKay, of Memphis, Tennessee, for appellant.

Courts will not prescribe standards in respect to the manner of draining railroad yards, or leave engineering questions such as are involved in the maintenance and construction of such yards, and the draining system therein, to the uncertain and varying judgment of juries.

Delaware, etc., R. Co. v. Koske, 279 U.S. 7; Toledo, etc., R. Co. v. Allen, 276 U.S. 170; Reetz v. Chicago, etc., R. Co., 46 F.2d 50.

There was no evidence to sustain the verdict of the jury. The verdict rests entirely upon speculation and conjecture as to the cause of the injury and death of decedent.

B. & O. R. Co. v. Berry, 286 U.S. 272.

The Federal Employers' Liability Act and federal decisions control.

Seaboard Air Line R. Co. v. Horton, 233 U.S. 492; So. Ry. Co. v. Gray, 241 U.S. 338-9; Mo. Pac. R. Co. v. Aeby, 275 U.S. 429; M. & O. R. Co. v. Clay, 156 Miss. 477.

Cause of Sudduth's fall is a matter of mere conjecture.

Elliott v. Gulf, etc., R. Co., 145 Miss. 778; Tyson v. Utterback, 154 Miss. 390; Gulf, etc., R. Co. v. Wells, 275 U.S. 455; N. Y. Cent. R. Co. v. Ambrose, 280 U.S. 489; Delaware, etc., Co. v. Ketz, 233 F. 36; Howe v. Mich. Cent. R. Co., 211 N.W. 113; Chicago, etc., R. Co. v. Coogan, 271 U.S. 472.

Plaintiff must show affirmatively negligence on part of defendant. No such negligence was shown.

M. & O. R. Co. v. Clay, 136 Miss. 463, 282 U.S. 844; B. & O. R. Co. v. Berry, 286 U.S. 272; N. Y. Cent. R. Co. v. Ambrose, 280 U.S. 486; Gunning v. Cooley, 281 U.S. 90; Northwestern Pac. R. Co. v. Bobo, 290 U.S. 499.

There was no duty on engineer to warn Sudduth. Sudduth's knowledge of the situation was better than that of engineer.

B. & O. R. Co. v. Berry, 286 U.S. 274-5.

Decedent lost his life as a result of the assumed risks of his employment.

L. & N. H. Co. v. Russell, 164 Miss. 538; C. & O. Ry. Co. v. Kuhn, 284 U.S. 44; Union Pac. R. Co. v. Marone, 246 F. 916; Chicago, etc., R. Co. v. Crotty, 141 F. 913; Southern H. Co. v. Logan, 138 F. 725; Delaware, etc., R. Co. v. Koske, 279 U.S. 7.

Peremptory instruction should have been granted, for the facts clearly show an assumption of risk, and also clearly show an absence of negligence on the part of the defendant.

Penn. R. Co. v. Chamberlain, 288 U.S. 343; Delaware, etc., R. Co. v. Converse, 139 U.S. 469; Gunning v. Cooley, 281 U.S. 90; Patton v. Texas, etc., Ry. Co., 179 U.S. 658, 663; Northwestern Pac. R. Co. v. Bobo, 290 U.S. 499.

Reily & Parker, of Vicksburg, for appellee.

When an employee is called into a position of danger in the proper performance of his duties, and there receives injury by reason of the negligent condition there existing, the liability is sufficiently shown.

Myers v. Lamb-Fish Lumber Co., 64 So. 727; Choctaw, O. & G. R. Co. v. McDade, 48 L.Ed. 96; L. & N. R. R. Co. v. Thomas, 40 So. 257; St. L. & S. F. R. R. Co. v. Starkweather, 297 P. 815; Southern Ry. Co. v. Wilmouth, 153 S.E. 874.

The appellant should not overlook the testimony from every witness who knew anything about it, that in the operation of the train in question, the statement made was an order and so understood by all railroad men, and that this order directed Sudduth to alight from this train.

It appears to us, to the extent above, that the defense of the railroad against the charge of negligence, is that the testimony from the witnesses is not correct, and not that it is insufficient.

The brakeman had the right to assume that the engineer had observed the situation and found it safe, before ordering him into a place of danger.

Schantz v. Northern Pacific R. R. Co., 173 N.W. 556; Van Dabo R. Co. v. Kendall, 119 N.W. 816.

We know of no cases anywhere, which hold that it is not negligent for an engineer to order a brakeman to get off of an engine at a time and place when the obedience of such order would necessarily mean injury to the brakeman, and that such order would not be negligence.

Gulf Refining Co. v. Ferrett, 147 So. 476; Seaboard Air Line Ry. Co. v. Latham, 127 So. 679; C. R. I. & P. R. R. Co. v. Cline, 14 P.2d 495; Van Dabo R. Co. v. Kendall, 119 N.W. 816.

It will be seen from the above authorities, that when the master negligently orders a servant into a place of danger, and the servant is injured, that the master is liable.

If the engineer was negligent in the case at bar, and this negligence proximately contributed to the death of the decedent, then the decedent did not assume the risk. An employee engaged in interstate commerce, as we understand it, does not assume the risk of danger incident to the negligence of another employee.

Reed v. Director General of Railroads, 66 L.Ed. 480; Van Dabo R. Co. v. Kendall, 119 N.W. 816; Haskey v. Heine Safety Boiler Co., 181 S.W. 1041.

R. M. Kelly and Chaney & Culkin, all of Vicksburg, for appellee.

The testimony overwhelmingly shows that it was the duty of the deceased to respond to the order of the engineer by leaving the cab on the west side of the train, the side from which the signal was given. The engineer at the time he gave the order was in a position to know and should have known that the engine was standing over this fifty-one foot inset, and a response to the order he gave by the deceased meant stepping into a space a distance of approximately forty feet, to death.

The deceased was not in a position to know the position of the engine on the bridge, being required to face the rear of the train and sitting, as he was required to sit, on the east side of the cab, the side opposite the point of danger. Certainly he did not know the danger of complying with the order of his superior in stepping out with his lantern to ascertain the cause of the trouble.

Argued orally by H. D. Minor, for appellant, and by Marion W. Reily, for appellee.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Lauderdale county, as administratrix of her deceased husband, J. C. Sudduth, to recover damages for his death, alleged to have been wrongfully caused by appellant while Sudduth was in its employ in the capacity of head brakeman. The trial resulted in a verdict and judgment in the sum of thirty-five thousand dollars. From that judgment, appellant prosecutes this appeal.

At the time of the injury and death of Sudduth, appellant's freight train, on which he was working as head brakeman, was engaged in interstate commerce, therefore he was employed in interstate commerce, and the case is therefore governed by the Federal Employers' Liability Act (45 U.S.C. A., secs. 51-59), and the applicable principles of law as interpreted by the federal courts. Seaboard Airline R. R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Missouri Pacific R. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Mobile & Ohio R. R. Co. v. Clay, 156 Miss. 463, 125 So. 819.

We have concluded that the court below erred in refusing appellant's request for a directed verdict. In stating the facts of the case, therefore, we shall put them most strongly for appellee. There is no real conflict in the material evidence.

Sudduth's injury, from which he died the next day, occurred about 7:40 P. M. on November 9, 1931, therefore, after dark. He was head brakeman on one of appellant's freight trains on its main line of railroad running from Memphis, Tennessee to New Orleans, Louisiana. He had been one of appellant's freight train conductors before, and in those capacities he had been in its employ for about eighteen years. Appellant's main line railroad runs through the town of Harriston in this state, where Sudduth was injured, and there it crosses its Natchez-Jackson branch. Harriston is an unincorporated village. On account of the crossing of the two lines, a good deal of switching and interchange of cars is done there. Fifteen or twenty car lengths south of Harriston appellant's main line crosses a bridge over a creek; the length of the bridge is about two hundred feet and its width about fifteen feet. On the east side of the bridge there is a walkway from one end to the other. On the west side there is no walkway. There is no way to alight from the west side of a train while standing on the bridge. The freight train on which Sudduth was head brakeman at the time of the injury consisted of fifteen cars, engine, and tender. It was going south.

Atkinson, who did not testify on the trial, having died, was engineer on the train on which Sudduth was head brakeman, and Moore was fireman. The injury resulting in Sudduth's death occurred just south of Harriston on the two hundred-foot bridge. Day was...