Sims v. National Box Co.

91 So. 194, 128 Miss. 478

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22378
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellant, Jesse Sims, sued appellee, National Box Company, for damages for a personal injury received by him. There was a verdict and judgment for appellee, from which appellant prosecutes this appeal.

When the injury occurred the appellant was engaged in his duties as an employee of appellee in its sawmill plant located near the river at Natchez, and received the injury through the fault of a felloAV-servant. The only question in the case is Avhether appellant at the time of his injury came within the protection of the statute abolishing the fellow-servant rule .(chapter 194, Laws of 1908, section 6684, par. 1, Hemingway’s Code), as to injuries received by employees in operating railroads. Paragraph 1, section 6684, Hemingway’s Code, is in this language:

“Every employee of a railroad corporation, and all other corporation and individuals, using engines, locomotives or cars of any kind or description Avhatsoever, propelled by tlie dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or others, or their employees, as are allowed by law to other persons not employed.”

The saw logs for appellee’s mill were drawn up from the river to the mill, a distance of something like one hundred yards, by means of a car, or truck with wheels, which ran on tracks and was propelled by steam. After thus being conveyed from the river to the mill plant, the logs were unloaded from this truck, or car, onto the log deck; from thence they were transferred to the carriage deck, and from the carriage deck they were transferred as needed for the purpose of being sawed to the saw carriage, to which they were attached, and in that position sawed into lumber.

Appellant shows by his own testimony that he had no duties whatever to perform with reference to transferring the logs from the river to the mill plant. Taking the testimony most strongly in favor of appellant, it shows that his duties consisted alone in transferring the logs from the carriage deck to the saw carriage and in keeping the trucks of the saw carriage cleaned off, and that he received the injury complained of while so engaged. So the question is whether a saw carriage is a railroad within the meaning of this statute. The evidence shows that a saw carriage is simply a piece of machinery in a sawmill. It is a part of the sawmill plant. It is true that a saw carriage has wheels and is propelled by steam and lever power, but that is not determinative of the question. Appellant relies on Hunter v. Ingram-Day Lumber Co., 110 Miss. 744, 70 So. 901, and Newman Lumber Co. v. Irving, 118 Miss. 59, 79 So. 2. The railroad involved in each of those cases was a regular logging railroad, which ran out into the forest, with cars and engines propelled by steam, and used for the purpose of hauling logs. In the case of Newman Lumber Co. v. Irving, supra, the court said that the statute in question ivas intended to protect employees subjected to the peculiar hazards incident to the operation of railroads. Here we have, not a railroad, but a sawmill, and the injury complained of occurring, not in the operation of a railroad, but in the operation of a saw carriage, a necessary piece of machinery used in sawing logs. We are of opinion that appellant did not come within the protection of the statute referred to.

Affirmed.