Homochitto Lumber Co. v. Albritton

96 So. 403, 132 Miss. 405

• Court: Mississippi Supreme Court
• Decided: March 15, 1923
• Docket: No. 23204
• Status: Published

Opinion

Smith, C. J.,

delivered, the opinion of the court.

This is an appeal from a judgment for twenty thousand dollars for personal injuries sustained by the appellee because of the alleged negligence of one of the appellant’s servants. The appellee is a locomotive engineer and was employed by the appellant as engineer of a shay locomotive used by it to move a logging train owned by it, on which it transported logs over its own and the tracks of the Mississippi Central Railroad Company. This train carried two crews, one for the operation of the train which was in charge of the engineer, and another which operated a steam loader by which the logs were loaded into the cars and which was in charge of its own foreman. The train crew included a fireman for the engine, a part of whose duty it was to run the engine when directed so to do by the engineer. The plan adopted by the appellant for transporting its logs to its plant was as stated in the brief of its counsel — “to collect them along its own tracks and along the Mississippi Central Railroad Company’s tracks, and to send the empty train of which the appellee was the engineer, and upon which there was placed a log loader which was operated by a loading crew, to the point at which the logs had been collected. The employee operating the log loader would load one or two cars of logs, when it would become necessary to move the train so as to place the log loader in such position as to enable it to load other logs which were placed alongside those just loaded. In order to have the train so moved, it was necessary to give the appellee who was the engineer a signal by blowing of the whistle of the log loader and upon the blowing of the whistle the appellee would move his train a sufficient distance to place the log loader where the other logs could be by it reached and loaded on empty cars; this method would be followed and the train moved and stopped by signals blown by - the log loader until all the empty cars were loaded, after which the train would be moved, by the shay engine of which the appellee was engineer, to the mill of the appellant and there unloaded.”

On the occasion in question the appellee carried his train to a place on the Mississippi Central Railroad, where it was to he loaded with logs which had been collected thereat, and after arriving he discovered that a brakebeam bolt was loose and about to drop out, and thereby render the engine unsafe to operate. While the train was being-loaded, he went under the engine for the purpose of repairing the bolt, and told the fireman' not to move the engine while he was under it. While he was engaged in repairing- his engine the fireman of the loading crew blew the whistle of the loader engine as a signal for the train to be moved far enough for the empty cars to replace those that had been loaded. Thereupon the appellee got from under the engine and directed the fireman to move the train in accordance with the signal, which the fireman did. When the train stopped, the appellee again went under his engine, after telling the fireman not to move it, except on his orders, and was engaged in repairing it Avhen the foreman of the loading crew again signaled for the train to be moved, which signal was obeyed by the fireman before the appellee could get from under the engine, resulting in the appellee having three fingers on his left hand crushed.

There was evidence to the effect that it was customary for the fireman to operate the engine for most of the time AAthile the train was being loaded. The appellee, Avhen injured, was forty-five years old, a skilled locomotive engineer, without training for any other occupation, and was making from twenty-seven to twenty-nine dollars per week.

The principal assignment of error is that the court beIoav should have directed a verdict for the appellant. The grounds of this assignment are: (1) That the appellee was injured because of the negligence of a fellow servant; and (2) that he had “assumed the risk incident to the act of the fireman in starting the locomotive while appellee was engaged in repair work underneath it.” Under the first of these subdivisions the contention of the appellant is that section 193 of the State Constitution does not abolish the fellow-servant rule as to employees engaged in the same department of labor as were the appellee and his fireman here, and that chapter 194, Laws of 1908 (Hemingway’s Code, section 6684), which does abolish this rule as to all railroad employees, is void, for the reason that the legislature is without power to abolish the rule as to railroad employees, as to whom it was left in force by section 193 of the Constitution. This contention was ruled against the appellant by Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 So. 461, which case we do not think should be overruled.

The appellant’s second contention is based on chapter 156, Laws of 1914 (Hemingway’s Code, section 504), which provides that:

“In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master; except as to conductors, or locomotive engineers, in charge of dangerous or unsafe cars or engines voluntarily operated by them.”

If the appellee’s injury had occurred while he himself was operating the engine and because of the defect in the brakebeam bolt thereof, of which he had knowledge, the question of the assumption of the risk by him therefrom Wiould be for determination, but the injury did not . so occur. He not only was not running the engine when injured, but had directed the fireman not to put it in motion until ordered by him to do- so, so that his injury was occasioned, not while he was voluntarily operating a defective engine, but because of the fact that it was negligently put in motion by the fireman in disobedience to his order not to move it. The appellee’s injury, therefore, was the result of the negligence of a fellow servant.

The verdict is excessive, but if the appellee will enter a remittitur of five thousand, the judgment will be affirmed for fifteen thousand dollars; otherwise it will be reversed, and the cause remanded for a new trial as to the amount of damages only.

Affirmed, with remittitur.

Holden, J., took no part in the decision of this case.