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

• Decision Date: 11 June 1917
• Docket Number: 19277
• Citation: 75 So. 690,114 Miss. 888
• Parties: YAZOO & M. V. R. R. CO. v. HOUSTON
• Court: Mississippi Supreme Court

75 So. 690

114 Miss. 888

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

No. 19277

Supreme Court of Mississippi

June 11, 1917

Division B

APPEAL from the circuit court of Quitman county, HON. W. A. ALCORN Judge.

Suit by Mrs. Lizzie Houston against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The husband of the appellee was in the employ of the appellant railroad company as a day-laborer engaged in loading sand and gravel upon cars, which sand and gravel was to be used in the repair of appellant's lines of railroad at various points on its line, which extended from Memphis, Tenn., through the state of Mississippi, to New Orleans, La. The gravel, which was in a hill, was loosened by the explosion of dynamite, and would fall to the bottom of the embankment, and from that point was taken up by steam shovel and dumped into cars. At times the explosion of the dynamite was not sufficient to cause all of the gravel loosened to fall to the bottom of the bank, and it became necessary for the laborers to take long poles and dislodge it. While the appellee's husband was engaged in loosening gravel with a pole, a large quantity of it fell suddenly upon him, burying him and causing his death. This suit was brought by his widow to recover for his death. There was a judgment based upon the verdict of a jury for eight thousand dollars, from which the railroad company prosecutes this appeal. The plea filed by the railroad company sets up the fact that the railroad company was engaged in interstate commerce, and that appellant's decedent at the time of his injury was employed in interstate commerce, in that he was engaged in the repair of appellant's interstate railroad, wherefore the liability of appellant, if any, was under the "Employers' Liability Act of Congress," and could only be enforced through a suit by the personal representative of the decedent, and that the widow had no right to maintain this action.

Judgment affirmed.

Mayes Wells, May & Sanders, Chas. N. Burch and H. D. Minor, for appellant.

At the time of this accident, the defendant was engaged in interstate commerce and the plaintiff's husband, the deceased, was employed in such commerce. The right of action to recover for his death exists, therefore, alone under the Federal Employer's Liability Act. Pedersen v Delaware, etc., R. Co., 229 U.S. 146; Tralich v. Chicago, etc., R. Co., 217 F. 677; Zikos v. Railroad Co., 179 F. 893; Southern Ry. Co. v. Mays (C. C. A.), 239 F. 40; Holmberg v. Lake Shore, etc., R. Co., 145 N.W. 504; C. R. I. & P. R. Co. v. DeBoyd (Tex.), 192 S.W. 766.

The decedent was employed to handle a steam shovel for the purpose of loading gravel onto cars to be immediately applied to the repair and improvement of defendant's main line of interstate railroad. At the moment of the injury he was poking down gravel so that the steam shovel might reach it and this was "a minor task which was essentially a part of the larger one;" the repairing and improvement of an interstate highway. Pedersen v. Delaware, etc., R. Co., 229 U.S. 146.

As the case is within the Federal Employer's Liability Act, the right of action for decedent's death, if any, can be asserted only by decedent's personal representative. This is not a matter of form, but of substance. American Railroad Co. v. Birch, 224 U.S. 457; Missouri, etc., R. Co. v. Wulf, 226 U.S. 570.

The case being under the Federal Act, the defendant is not liable except for negligence and, in determining whether there was negligence, the common law as interpreted and applied in the federal courts must control. Southern R. Co. v. Gray, 241 U.S. 333; Sea Board Air Line v. Horton, 233 U.S. 492.

There was no negligence on the part of the defendant railroad company but the unfortunate death was due wholly to the carelessness of the decedent himself. Infra, pp. 2831. The decedent had been employed at this particular work for some time and in work of this character for two or three years. Several months before the accident he had been caught in a similar slide of gravel.

The situation at the time of the accident was perfectly apparent to him and he, therefore assumed the risk. Record, pp. 62, 192; Sea Board Air Line v. Horton, 233 U.S. 501; C. R. I. & P. R. Co. v. DeBoyd (Tex.), 192 S.W. 766; Infra, pp. 32-38.

Whether the case falls within the federal act or not, the plaintiff is not entitled to recover because her husband assumed the risk, for the doctrine of assumption of risk was in force in Mississippi at the time of this accident, February 24, 1914. Railroad Co. v. Bowles, 71 Miss. 1003; Morehead v. Railroad Co., 84 Miss. 112; Newman Lumber Co. v. Dantzler, 107 Miss. 31; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615.

The Mississippi Act of 1914 (ch. 156) undertaking to abolish the doctrine of assumption of risk, was not passed until February 28, 1914, four days after the injury and death here complained of. That act had no retroactive effect. Easten v. Van Dorn, Walker 14; Garrett v. Beaumont, 24 Miss. 277; Hughston v. Carroll County, 68 Miss. 660; Bramlett v. Wetlin, 71 Miss. 902.

The trial court failed to give proper effect to the doctrine of assumption of risk for that he limited the assumption of risks not arising from the negligence of the defendant and instructed the jury in effect that the decedent did not assume any risks arising out of the negligence of the defendant.

The recognized rule is that an employee not only assumes risks ordinarily incident to his employment and not arising from negligence of the master but also assumes risks arising from negligence of the master where such risks were observed by him or were so obvious that any ordinarily prudent man would have observed them. Seaboard Air Line v. Horton, 233 U.S. 492; Chicago, etc., R. Co. v. DeBord, 192 S.W. 768.

P. H. Lowrey, for appellee.

The one question which lies at the root of this case is whether or not the deceased, S. S. Styres, was, at the time of his injury, engaged in interstate commerce within the meaning of the Federal Employers' Liability Act. If he was and if the liability is under this act, then the appellee, who was plaintiff below, is out of court.

It is unnecessary to discuss whether or not she has made a case of liability under that act for, if that act applies then we concede that the suit could not have been brought by her and that there can be no recovery.

On the other hand, we contend with all confidence that if this act does not apply, then the judgment of the lower court should be affirmed, as the case was clearly made out under the laws of the state of Mississippi.

This suit was brought soon after the decision by the United States supreme court in the case of Pedersen v. Deleware, etc., R. Co., 229 U.S. 146, 57 L.Ed. 1125. The court, undertaking to follow the decision in that case decided the first controversy raised in the pleadings in favor of the defendant, holding that the federal statute was applicable. Before the trial the supreme court of the United States decided the case of Deleware, etc., R. Co. v. Yurkonis, 238 U.S. 439, 59 L.Ed. 1397, and following the decision, in that case the court below changed its views upon the subject, as is indicated by the record of the trial. We think it was evident, and we insisted in the court below upon the first hearing, that the supreme court of the United States had gone to the uttermost limit in the Pedersen case and that there would evidently be a retrenchment instead of an advance in the construction of this act. We think we were borne out in this contention by the fact that three of the judges of that court dissented in that case and filed a strong dissenting opinion. We also contended, in which we think we were correct, that taking that decision at its full value this case did not fall within the rule there decided. We think that our contention at that time was abundantly warranted by the decisions of that court which followed.

In discussing this question we shall depend alone upon the decisions of the United States supreme court upon the subject, and we cite them as follows: Delaware, etc., R. R. Co. v. Yurkonis, supra; Shanks v. Delaware, etc., R. R. Co., 239 U.S. 556, 60 L.Ed. 436; I. C. R. R. Co. v. Cousins, U.S. Adv. Ops., 1915, page 440. This is a memorandum opinion reversing the judgment of the supreme court of Minnesota in case of Cousins v. I. C. R. R. Co., 148 N.W. 58; Chicago, etc., R. R. Co. v. Harrington, U.S. Adv. Ops., 1915, page 517; Erie R. R. Co. v. Welsh, U.S. Adv. Ops., 1916, page 116; Minneapolis, etc., R. R. Co. v. Winters, U.S. Adv. Ops., 1916, page 170; Minneapolis, etc., R. R. Co. v. Nash, U.S. Adv. Ops., 1916, page 239.

This is a memorandum opinion reversing the supreme court of Minnesota in Nasy v. Minneapolis, etc., R. R. Co., 154, 957 and 155 N.W. 1102. Baltimore, etc., R. R. Co. v. Branson, U.S. Adv. Ops., 1916, page 244.

This is a memorandum opinion reversing the supreme court of Maryland in Baltimore, etc., v. Branson, 98 Atlantic 225; New York Central R. R. Co. v. White, U.S. Adv. Ops., 1916, page 268.

The Yurkonis case which has been cited and followed in nearly every one of the other cases, is strikingly like the case at bar. In that case Yurkonis was mining coal for use on interstate trains in a mine belonging to and operated by the railroad company. In touching off a blast, by a premature explosion, he was injured. In the case at bar the deceased was "mining" gravel in a pit operated by the railroad company for use on an interstate road, and in punching down the gravel, by the premature falling of the gravel he was injured. It would be difficult to find two cases nearer parallel. The court says in the Yurkonis case "The mere fact that the coal was intended to be...