Yazoo & M. v. R. R. Co. v. Dees

• Decision Date: 09 February 1920
• Docket Number: 20945
• Citation: 121 Miss. 439,83 So. 613
• Parties: YAZOO & M. V. R. R. CO. v. DEES
• Court: Mississippi Supreme Court

83 So. 613

121 Miss. 439

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

No. 20945

Supreme Court of Mississippi

February 9, 1920

March 1920

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN Judge.

1. MASTER AND SERVANT. Ordinary risks assumed Federal Employer's Liability Act. Risks not assumed.

A servant by merely entering the service of the master assumes the ordinary risks of the service; and if he is injured solely because of them he cannot recover, but at common law and under the Federal Employer's Liability Act (U. S Comp. St., sections 8657--8665) risks created by the master's negligence are not assumed by the servant unless with an actual or constructive knowledge thereof and appreciation of the danger therefrom he voluntarily enters or continues in the employment of the master.

2. MASTER AND SERVANT. Employees within Federal Employer's Liability Act assumed risks of switch light going out without fault, but not for lack of oil.

Under the Federal Employer's Liability Act (U. S. Comp. St section 18657--8665), a railroad yard employee assumed the risk of the light on the switch stand over which he stumbled going out without fault on the employer's part, but not the risk arising from the failure of the employee in charge thereof to keep it filled with oil, unless he had actual or constructive knowledge before the injury that the light was out.

3. MASTER AND SERVANT. Railroad charged with duty to keep switch lights burning.

Although lights were primarily placed on railway switch stands to show whether the switches were open or closed their presence was an invitation to employees to use them for the purpose of locating and avoiding the switch stands and it was the employer's duty to exercise reasonable care to keep them burning for this purpose.

4. MASTER AND SERVANT. Risk from employer's negligence not assumed under Federal Employers Liability Act.

Under the Federal Employer's Liability Act (U. S. Comp. St., sections 8657--8665) an employee does not assume a risk created by his employer's negligence merely because he had as good an opportunity as the employer of knowing of its existence.

5. TRIAL. Refusal of instruction the substance of which has already been given.

It was not error to refuse an instruction the substance of which had already been given in other instructions.

6. MASTER AND SERVANT. Servant did not assume risk under Federal Employer's Liability Act though he knew location of unlighted switch.

Under the Federal Employer's Liability Act (U. S. Comp. St., sections 8657--8665) a railroad employee stumbling over an unlighted stand did not assume the risk though he had worked in the yards for years and knew where the switch stand was located, where he fell over the switch in the dark, not knowing that he was in its vicinity.

7. TRIAL. Limit to instructions.

Trial courts are required and should only grant instructions sufficient in number and character, to guide the jury in determining the issues involved in the case on trial and they have the right to limit the number of instructions to be considered by them accordingly, but this should not be done arbitrarily.

8. DAMAGE. Amount.

For an injury causing a double hernia, permanent unless relieved by a dangerous operation which might not be successful, and causing pain at intervals and compelling plaintiff to wear a truss and materially reducing his capacity for work, a verdict by the jury for $15,000 was not excessive.

HON. E. L. BRIEN, Judge.

Suit by John C. Dees against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

Suit by John C. Dees 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.

Affirmed.

Charles N. Burch, H. D. Minor and Hirsh, Dent & Landau, for appellant.

The decisions of the supreme court of the United States applicable to the facts of this case, control. "Whenever Congress enacts statutes pursuant to its power under the commerce clause, such laws, when enforced in both state and federal courts must be construed in the light of federal decisions and applicable common-law principles as interpreted and applied in the federal courts to the exclusion of common-law rules different therefrom enforced in state courts. It therefore follows that even in actions under the federal act prosecuted in state courts the decisions of the state courts do not govern in determining the application of the doctrine of assumption of risk if the rules therein adopted differ from those applied in the federal courts." 1 Roberts' Federal Liabilities of Carriers, sec. 557; Southern R. Co. v. Gray, 241 U.S. 333.

3. Plaintiffs assumed the ordinary risks incident to his employment. Plaintiff assumes the ordinary risks normally incident to his occupation whether he was actually aware of them or not." 1 Robert Federal Liabilities of Carriers, sec. 558; Seaboard Air Line Railway v. Horton, 233 U.S. 492-504.

4. Plaintiff assumed the extraordinary risks due to negligence of employer and fellow employees when known and appreciated by him. "Under the federal Employer's Liability Act, except in the cases specified in section 4, the employee assumes extraordinary risks incident to his employment, and risks due to negligence of employer and fellow employees, when obvious or fully known and appreciated by him." Boldt v. Pennsylvania Railroad Co., 245 U.S. 441.

Even, therefore, if the lamp tender had been incompetent (the fact that he was competent was established in this case), his failure to keep these lamps lighted, admittedly known to plaintiff, would defeat any action to recover for injury, sustained by reason of any defective lighting; but it is also established in this action that the lighting was in no respect defective, and, on the contrary, it was shown that the lights in the best lamps are occasionally extinguished.

5. Master not an insurer of the safety of the employee and he must have actual or constructive notice of a defect before plaintiff can recover. "The master does not insure or guarantee that the machinery or appliances are in a safe and suitable condition, and where defects exist, the master is not held to be guilty of negligence unless it appears that he knew, or by the exercise of ordinary care, could have known that such machinery and appliance had become defective and were in an unsafe condition." In other words, it must appear in order to entitle the plaintiff to recover, that the master had either actual or constructive notice of the defect alleged to have caused the injury, and these facts must be established by legal evidence. Washington, etc., Railway Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044, 34 L.Ed. 205; Norfolk & Western Ry. Co. v. Reed, 167 F. 16, 92 C. C. A. 78; Virginia, etc., Wheel Co. v. Chalkley, 98 Va. 62, 34 S.E. 676." Barett v. Virginia Ry. Co. 244 F. 399; Hope v. Railroad Company, 98 Miss. 829; Mississippi Central R. R. Co. v. Bennett, 111 Miss. 163; Lumber Co. v. Garner, 117 Miss. 814; Seaboard Air Line Railway v. Horton, 233 U.S. 492, 501; Yazoo & Mississippi Valley Railroad Company v. Mullins, administratrix (April 21, 1919); United States Supreme Court Advance Opinions, No. 13, p 433, Lawyers Co-op. Publishing Company.

6. Master only required to see that the instrumentalities are reasonably safe, for the functions designated. "A general principle which is frequently conclusive against the servant's right to maintain an action is that the master's duty in respect to his instrumentalities is restricted to seeing that they are reasonably safe for the performance of the functions for which they are designed."

"It is universally agreed therefore, that an employer is not liable where the servant's injury was not caused by any defect in the appliance which affected its safety when it was used in the ordinary manner and for the purposes for which it was intended." 3 LaBatt on Master & Servant (2 Ed.), section 921.

The master is not obligated to keep a building in a safe condition at every moment of the work. The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not obligate him to keep a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants." Armour v. Hahn, 111 U.S. 313.

8. An employee voluntarily accepting employment with knowledge of conditions, and without obligation, even assumes the risks of insufficient lighting. "A carpenter assumed the risk of injury arising from insufficient lighting where he was required to work, where he entered upon the work without objection. Cincinnati, N. O. & T. P. Ry. Co. v. Skinner, 136 S.W. 644. In this case it is established by the evidence that the lighting was sufficient.

9. Plaintiff knew the condition, and appreciated the danger, therefore assumed the risk, and cannot recover. "An experienced employee, admittedly knowing the material conditions and presence of a pile of cinders who attempts to board a moving engine with a vessel of water in his hand, must be considered as appreciating the danger and assuming the risk although at the time he may have forgotten the existence of the cinders; and this is so, even if the employer was negligent in allowing the cinders to remain. There being no violation of any safety statute, the common-law defense of assumption of risk is not eliminated in such a cause by the Employer's Liability Act." Jacobs v. Railroad Company, 241 U.S. 244.

The plaintiff, "an experienced employee, admittedly knowing the material conditions" assumed the risk.

10. The court...