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

Citation45 So. 873,92 Miss. 289
Decision Date16 March 1908
Docket Number13,099
PartiesYAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LOUIS W. SLAUGHTER ET AL
CourtUnited States State Supreme Court of Mississippi

FROM the circuit court of Claiborne county, HON. THOMAS G BIRCHETT, Special Judge.

Slaughter and wife, appellees, were plaintiffs in the court below, and the railroad company, appellant, was defendant there. From a judgment in plaintiffs' favor the defendant appealed to the supreme court.

The appellees sued the railroad company for recovery of damages because of the death of their infant son, Thomas Slaughter who was drowned in a water tank of the railroad company. Louis W. Slaughter, one of the appellees, was an employe of the railroad company, having charge of the company's pump house and water tank in the town of Hermanville. The tank, a large wooden structure, cylindrical in form and capable of holding several thousand gallons of water, was elevated on posts some distance above the ground. It had a slanting wooden roof covered with tar and gravel. A ladder extended from the ground tot he upper outside edge of the tank rendering access easy to a man-hole in the roof near the outer edge. The amount of water in the tank was shown by an index attached to a float, and the discharge of the water was regulated, in the usual way, by a lever. On the day of the casualty the appellee, Thoma Slaughter, had occasion to leave Hermanville on personal business, and left his fourteen-year old son, Thomas, in charge of the pump and tank; and, as appellee passed through Harriston, on the train, he saw the foreman of the company's water department, by whom he was employed and to whom he was accountable and who had full power to hire and discharge employes for the company in such department, and stated to him that he was compelled to go to Baton Rouge on business, and had left his son and a negro in charge of the pump and tank, and received the reply "all right, in case of business, go ahead." The son was familiar with the duties of the position he was called upon to fill, and had been left in charge of the pump and tank, with the knowledge of the water-foreman, on former occasions. The son was upon the company's pay-roll, under a false name to obscure his infancy. Being thus left in charge of the tank, the boy climbed to its roof, where according to the undisputed testimony of different eyewitnesses, he spent some time in walking about on the roof and throwing stones at passers-by. The evidence did not disclose whether he was engaged in the business of the company at the time he fell through the roof of the tank and met his death, although, according to the testimony of one witness, the boy went on the roof to adjust the float and lever, but how long before his death the witness could not say. There was evidence to show that the roof of the tank was rotten. The jury found a verdict in favor of appellees for $ 3,500, which the trial court required to be reduced to $ 2,350, as a condition to the denial of a new trial.

Reversed and remanded.

Mayes & Longstreet and Chalmers Alexander, for appellant.

Slaughter, the father and appellee, was an employe of the railroad company, in charge of the pump house and water tank. He admits in his testimony that if he had seen anything about the pumping plant out of repair it was his duty to repair it and further states that the agents of the railroad company would be poor inspectors if they could not have discovered the need of repairs on the tank. If the father was in charge of the tank, and there were repairs needed which could be easily seen and it was the father's duty to make them, he is not in position to claim recovery for his son's death, irrespective of anything in the state constitution or statutes, the negligence being his own.

While it appears that the son, who was only fourteen years and a few months old, worked around the pump house occasionally and while, in a vague sort of way it appears that there was a name on the railroad company's pay-roll representing the boy as employe of the company, it still appears that the father did not consider the son as an employe of the railroad company, for his testimony is to the effect that the son "occasionally helped." The evidence shows that the boy sold newspapers, worked occasionally for other parties, did errands around his home, and was not habitually at the pump house and tank.

The tank was covered by a slanting top or roof, dangerous to walk on under any circumstances. The railroad company could not reasonably anticipate that the tank's roof would be made the playground of any person. The roof was high in the air and of only seven feet six inches raduis. From the ground a ladder led to the outside top of the tank, the upper end of which stopped at the outer edge of a man-hole in the roof. Inside the tank a smaller ladder led down into its interior. The manhole was of sufficient size to admit the body of a man, and its edge was strengthened by a frame-work so as to be stronger than the rest of the roof. The only purpose for which a person would have to go to this damp and dark retreat would be to see that the float (connected with the index) was in working order, or to arrange the lever which, on the pull of the fireman or engineer of a passing engine, opened the valve and allowed the passage of water into the tender of the locomotive. Only persons of cool heads could be expected to ascend the ladder leading to the tank.

An examination of the roof of the tank, made after the unfortunate tragedy, showed that the hole through which the boy fell was in a part of the roof or top where any employe attending strictly to his business would have no occasion to be. When the court considers the undisputed evidence as to the actions of the boy in playing around on top of the tank and from its roof throwing stones at unsuspecting passers-by, the conclusion must follow that, even if the boy were an employe, he was acting beyond the scope of his duties when he sustained the injury resulting in his unfortunate demise. Although one witness, and one only, Tillman, testified that the boy went up the ladder to fix the lever and float, he did not testify how long this was before the boy fell through the roof. The hole through which the boy fell was five feet or more away from the manhole. The hole was in a part of the roof where the employe, in ascending the ladder and effecting entrance into the tank through the man-hole to fix the lover, could not reasonably be at any time during the performance of his duty. It was no part of that duty for the employe to walk about and over the roof, and use it for an observatory of the neighborhood.

It was held in the Daniel's case, 73 Miss. 258, 19 So. 830, that where plaintiff used an appliance in an improper manner for a use not necessary, he could not recover for injury caused thereby.

An employe of an oil mill, in falling from a roof, caught at a wooden "horse," which, being of insufficient strength to withstand the strain, broke under his weight, and it was held that, as he sought to use it for an improper use, a peremptory instruction should have been given in favor of the defendant. Bell v. Oil Company, 77 Miss. 387, 27 So. 382.

The master is not liable for injury to an employe, who, for his own convenience, uses other than the proper way or method of procedure. Morehead v. Railroad Company, 84 Miss. 112, 36 So. 157.

Where there is a safe and an unsafe way of doing a thing, and the servant knows or should know it and yet chooses the unsafe way, he cannot recover from his master for the injury. Schoultz v. Mfg. Company, 112 La. Ann., 568.

Sec. 193 of the state constitution gives no right to the appellees to sue in this case. For, under the decision of this court in Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174, the section is applicable only when the peril comes by or from the hazardous nature of the business of operation of railroad trains. Did any railroad train in any way, directly or indirectly cause the boy's death? If the tank had been the property of some private individual, and the relationship of the boy and his father to such individual had been the same as their present relationship to the railroad company, would sec. 193 of the constitution have been applicable? The answer is self-evident.

J. McC. Martin, for appellees

"Every employee of a railroad corporation shall have the same rights and remedies for an injury suffered by him from the act or omission of the corporation or its employees as are allowed to other persons not employees" . . . "Knowledge by an employee injured of the defective or unsafe character or condition of any machinery, ways or appliances . . . shall not be a defense to an action for injury caused thereby" . . . "When death ensues from an injury to an employee an action may be brought in the name of . . . the husband or father for the death of a child" etc. Code 1906, § 4056.

"Whenever the death of any person shall be caused by any real, wrongful or negligent act, or omission, or by such unsafe machinery way or appliance, as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, and such deceased person shall have left a . . . father or mother, . . . the person or corporation, or both, that would have been liable, if death had not ensued, . . . notwithstanding the death, and the fact that death is instantaneous shall, in no case, affect the right of recovery. The action for such damages may be brought in the name of the . . . parent for the death of a child, . . . or all parties interested may join in the suit . . . In such action the party or parties suing shall recover such damages of every kind to any and all parti...

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