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

• Decision Date: 25 February 1924
• Docket Number: 23481
• Citation: 99 So. 14,134 Miss. 887
• Parties: YAZOO & M. V. R. CO. v. COCKERHAM
• Court: Mississippi Supreme Court

99 So. 14

134 Miss. 887

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

No. 23481

Supreme Court of Mississippi

February 25, 1924

Division B

APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN, JR. Judge.

Suit by H. L. Cockerham, administrator, against the Yazoo &amp Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.

Judgment affirmed.

Chas N. Burch, H. A. Minor, and Shands, Elmore Causey, for appellant.

The whole controversy in this case is whether the coupler on the head car of the train met the requirements of the Safety Appliance Act of Congress (27 Stat. at L. 531).

The question therefore in this case, is, whether the tender of the engine and the head car of the train could be coupled by impact "without the necessity of men going between the ends of the cars." As we shall hereafter point out, the proof without conflict shows that there was no necessity for Cockerham to go between the cars.

Our contention is that if it was possible to couple the cars by impact by the brakeman using and manipulating the lever at the end of the car, and he failed to use and manipulate such lever, and is injured, then the brakeman is the author of his own injury and there can be no recovery.

The object of the statute was to prevent the necessity of men going between the cars to adjust the couplers so that they couple. That necessity does not exist when the coupler can be adjusted by use of the lever on the outside of the car. In short, a coupler does not fail to couple by impact in the sense of the statute until after the switchman or brakeman has first attempted to use device provided for his safety, that is, the lifting lever.

The whole proof in this case shows that the coupler was in good operative condition and that the lever was operating properly and that the lever could be adjusted either so that a coupling could be made, or so that coupling could not be made. Cockerham did not attempt to use the lever at all.

We are aware that the courts have held that the duty resting upon railroad companies relative to safety appliances is absolute, and that it is no excuse to say that the railroad company exercised due care and diligence. A. & V. R. R. Co. v. Dennis, 128 Miss. 298; C. B. & Q. v. U.S. 220, 559; Delk v. St. L. & S. F. R. R. Co., 220 U.S. 580.

In discussing the leading cases in which railroad companies have been held liable, or not liable, for injuries to brakeman while between cars in making couplings or uncouplings, we shall show that in those cases in which the railroad companies have been held liable, the brakeman recovered because he did not go in between the cars until after he had attempted to use, without success, the lift lever, that is, the safety device provided for his protection, and that the brakeman has not been permitted to recover in those cases in which he attempted to effect a coupling or uncoupling without first resorting to the use of the lift lever. The leading case in Mississippi is A. & V. Ry. Co. v. Dennis, 128 Miss. 298. Coming now to the United States supreme court cases see C. B. & Q. v. U.S. 220 U.S. 559; Chicago, Rock Island & Pacific Ry. Co. v. Brown, 299 U.S. 317; Minneapolis, St. Paul, etc., Ry. Co. v. Popplar, 237 U.S. 396; San Antonia & A. P. R. Co. v. Wagner, 241. U.S. 476; Atlantic City R. R. Co. v. Parker, 242 U.S. 56; Lang v. New York Central R. R. Co., 255 U.S. 455; McCalmont v. Penn. R. R. (C. C. A.), 283 F. 741; Payne v. Calvin, 276 F. 15; Tenn., etc., R. R. v. Drake, 276 F. 393; Nichols v. C. & O. R. R., 195 F. 913; P. & A. R. R. v. McKibbin, 259 F. 476.

The case of Chesapeake & Ohio R. R. v. Charlton, 247 F. 34 (same case on second writ of error, 256 F. 988, same case, a certiorari denied by the United States supreme court, 249 U.S. 614), is very much in point and very similar in its facts to the instant case. In that case a judgment in favor of plaintiff was reserved. The plaintiff's intestate, a brakeman, was injured while attempting to couple cars. On the first impact the coupling failed to make and the brakeman thereupon went in between the cars and was crushed. It was not shown in that case, or in this case, why the brakeman went in between the cars instead of resorting to the lifting lever. See, also, St. Louis Southwestern Ry. Co. v. Bounds (Texas Civil Appeals), 244 S.W. 1099.

The jury returned a verdict of thirty thousand dollars in this case. We submit that it is too plain for argument that such a verdict is grossly excessive. The plaintiff was entitled to recover two items of damage, first, the present worth or value of the pecuniary benefits of which the beneficiary (mother) was deprived; second, damages for the pain suffered by the deceased between the time of his injury and the time of his death. It is apparent, therefore, that to purchase an annuity of nine hundred dollars a year for eleven and ten-hundredths years would cost considerably less than ten thousand dollars. We submit that five hundred dollars to one thousand dollars would be the maximum amount which should be allowed for the conscious pain suffered by him. Northern Pacific Ry. v. Merkl, 198 F. 1; Great Northern Ry. Co. v. Capital Trust Co., 242 U.S. 144; Gulfport & Miss. Coast Traction Co. v. Keebler, 94 So. 795.

Sillers, Clark & Sillers, for appellee.

Counsel lays down the proposition, that "before a brakeman can insist that a coupler does not comply with the law, he must, first, have attempted to adjust and manipulate the coupler with the lever, so as to put the couplers in position to engage each other." We have carefully read every decision cited by counsel in his brief and, also, every decision which we could find, bearing on this question, and we have yet been unable to read a decision in which a recovery was denied plaintiff, in the case of a defective coupler because of the fact that he did not attempt to use the lift lever to make the automatic coupling.

Counsel says, that the jury might have concluded from certain testimony that the use of a nail in lieu of a cotter key was an irregularity, if not a defect in the coupling, when they had positive, direct testimony that it was a defect. We are absolutely at a loss to see how counsel arrives at the conclusion, that it distinctly appears that Cockerham did not attempt to use the lever. No witness in the case testified whether he attempted to use it or not, and no witness was asked that question. We respectfully submit to the court that the evidence, as a whole, does not show that the coupler was in operative condition and would couple by impact, even if the lever were used, without the necessity of men going between the cars.

While it is true that the object of the statute was to prevent the necessity of men going between the cars to adjust the couplers, and while, if he could stand outside and adjust it by lever, it would not be necessary for him to go between them, yet to say that until a man had first used the lever and it had failed to work, the statute would not apply to a case of injury, occurs to us, would nullify the entire statute. All that the brakeman is required to do is to act as any ordinarily prudent man would do under the circumstances.

But under the Safety Appliance Act, once the defect is shown in the coupler, which is such a defect as would prevent the cars from coupling automatically upon impact, at all times, then it matters not how negligent the employee might have been, it is no bar to his recovery, provided the defect contributed to the injury. 2 Roberts Federal Liabilities of Carriers, page 1322, sec. 785; Spokene & I. E. R. Co. v. Campbell, 241 U.S. 497, 60 Law Ed. 1125; Smith v. Atlantic Coast Line Co., 210 F. 761; Grand Trunk Western Railway Co. v. Lindsay, 58 Law Ed. 838.

A careful study of the cases cited by counsel will convince this court that we are correct in our position and that counsel is incorrect in his reasoning as to what these cases hold. In each one of these cases, the only evidence in the record tending to show a defective appliance was the fact that the injured employee attempted to use the lift lever and it failed to work--and this was the sole evidence upon which the court held that the proof was sufficient to submit the case to the jury on the question of whether or not the coupler or appliances were so defective as not to comply with the Safety Appliance Act. In none of these cases was there any other proof tending to show a defective condition of the coupler or other appliances. In none of these cases was the basis of the decision as to liability the fact that an attempt had been made to use the lift lever, but the basis of the decision as to liability was the fact that the cars failed to couple automatically by impact--the coupler or other appliances were so defective that they did not comply with the Safety Appliance Act--and the only proof introduced as evidence to show such defective condition, was that the injured employee attempted to make the coupling by use of the lift lever and failed in his attempt.

We call the court's attention to Delk v. S. L. & S. F. R. R Co., 55 L.Ed. 590, where the defendant was attempting to make a coupling and the coupling on the car was defective in that the chain connecting the uncoupling lever to the lock pin was disconnected, owing to a break in the lock pin. No effort of any kind is shown by the statement in the record on the part of Delk to use a lift lever, and the court held that the Railroad Company was liable in that case because of the absolute duty imposed upon it to provide its cars when moving in interstate traffic, with couplers which would couple automatically upon impact. And to keep them in proper condition. See, also, St. Joseph & G. I. R. Co. v. Moore, 243...