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

• Decision Date: 07 May 1906
• Citation: 40 So. 746,88 Miss. 193
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. WILLIAM B. PARKER
• Court: Mississippi Supreme Court

40 So. 746

88 Miss. 193

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. WILLIAM B. PARKER

Supreme Court of Mississippi

May 7, 1906

FROM the circuit court of Madison county, HON. DAVID M. MILLER Judge.

Parker the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The declaration charged that the plaintiff, Parker, was a section foreman on the appellant's line of railroad, and used each day, in the course of his business, a hand car on which he and his crew of workmen rode over the section of defendant's track on which they worked; that the car which was furnished to plaintiff by defendant was defective and that plaintiff, upon learning of the defect, advised the servants of the railroad company, superior to him, of such defects, but that a new car was not furnished, nor was the car which he used in the routine work repaired, but it continued to be defective, dangerous, and unsafe; that on the day of the accident, while plaintiff and his crew were riding on the hand car in the performance of the duties for which they were employed, it jumped the track; plaintiff was thrown in front of the car, and was struck by it and received the injuries for which he sued. To this declaration the defendant filed the general issue, and a special plea setting up that "at the time the plaintiff received the injury complained of he was in charge and full control of the defective car and the hands that operated it, and was voluntarily running the same on the line of the defendant's railroad as a conductor, well knowing the unsafe character of said car at the time." The court below sustained a motion of the plaintiff to strike out the special plea of the defendant on the ground that, "under the facts set up in the declaration and admitted by the pleading, said plaintiff was not such a conductor as is contemplated under the law." The defendant assigned as error the "striking out of the plea of the defendant that plaintiff, when injured, was acting as a conductor."

Judgment affirmed.

Mayes &amp Longstreet, for appellant.

Throughout the declaration the plaintiff emphasizes three facts: (1) That the car was in a condition so defective as to make the same dangerous and hazardous to use; (2) that he ascertained this fact as soon as he began to use the car; (3) that he complained of its condition, and the fact that it was dangerous to use, to the supervisor of the district.

There is abundance of testimony throughout the record, by the defendant company, that a section foreman is in full authority over, with full power to control and direct the use and movements of his car, and of all the hands employed who may be riding thereon, and with respect to such car he discharges all the duties and authorities of a conductor.

Section 193 of the constitution was intended merely to change the rule that mere knowledge of the defect barred recovery. It did not intend, nor did it, in fact, provide for a certain recovery notwithstanding knowledge of defects and continued use of the machinery where the continued use was voluntary or willful or reckless, and subjected the person to obvious hazards. Nor did it intend to change the rule with respect to persons in authority. In the case of Welsh v. Railroad Co., 70 Miss. 24 (s.c., 11 So. 723), our court has said that here knowledge of a defect "where no willful or reckless negligence can be predicated of the conduct of the injured and complaining employe," will not bar the right of action.

But in the case just cited, and in subsequent cases construing sec. 193, this court has said more than once that sec. 193 and its provisions did not in any wise authorize willful carelessness or negligence on the part of an employe.

Nor can the plaintiff relieve himself of the consequences of the voluntary use by claiming that he had ascertained the dangerous condition of the car, he had informed his superior of it, and that the obligation on the railroad company was to make further voluntary service on his part safe by immediately furnishing him with a car which was not hazardous.

The rule on this point is well stated in the recent case of Griffith v. Lexington, etc., Railroad, 53 S.E. 97.

The provisions of sec. 193, quoted above, in using the term "conductor" does not intend any particular kind of a conductor; nor was it intended by its use to refer to a particular class of persons only, according to their ordinary designation. It does not mean that it should apply only to people who are termed engineers or conductors; but it means that all people who perform the services which are performed by engineers; or who render the services rendered by the persons ordinarily known as conductors, shall be included within the spirit and letter of the statute. The words are intended to apply to duties, powers, and offices, rather than to be controlled by a mere nomenclature.

So, though a man might be called section foreman, or section boss, yet if, on the analysis of the facts, the court should determine that with respect to his men and car he exercised all the authority usually implied in the position of conductor of railroad cars, he would be held to be included in the term "conductor." The section evidently means to refer to the duty and authority, and not the mere matter of technical appellation.

H. B. Greaves, for appellee.

The issue was fairly presented to the jury, and defendant allowed the full benefit of contributory negligence, and got all the instructions to which it was entitled.

The constitution...