Southern Railway Co. v. Wiley

41 So. 511, 88 Miss. 825

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

The evidence in this case shows the grossest and most outrageous negligence on the part of the appellant company in not furnishing appellee with safe machinery and appliances with which to work, especially in furnishing a wooden beam or bolster truck, as one of the witnesses called it, in an utterly rotten and decayed condition, and in not properly inspecting said machinery and appliances and having the same put in safe condition after repeated notice and with full knowledge of their utterly unsafe character. The proximate cause of this injury is shown with sufficient clearness by the testimony to have been the rotten condition of the woodwork of the truck, or the wnoden beam, or as some of the witnesses call it, the truck bolster. This rotten wood, not visible from the outside, gradually crumbled and gave way, and thus the chain slipped over the top of the rim of the cylinder and the injury followed. The witness, Redman, who was an employe of the Southern Railway Company, the appellant here, engaged in operating a steam shovel, makes out an overwhelming case for the plaintiff, so far as the negligence aforesaid is concerned. Tie points out all the particulars in which the machinery and appliances were defective, testifies positively that the plaintiff stood in a position which was dangerous in consequence of the “circles” dropping down too much,' and shows that the chain was not the chain that originally belonged to the machinery; that it was defective, and not such a chain as should have been used. He testified: “Q. Detail to the court and jury what happened when he got hurt. A. Weil, the chain came over the circle there, and caught him against the mast-post, and that is the reason he got hurt. Q. How came it to come over the top of the circle? A. The front end of die machine was lower than it originally ought to be. Q. IToav came it to be lower than it ought to be ? A. The woodwork of the truck, known as the Truck bolster/ where the central casting is placed on the boom deck of the car, was rottened out and sunk down, and the timber on the front end was rotten, and by that means it swagged down a portion of the machine, and that is how it came to get lower.” He further testified that when the beam was taken off, and they raised the circle off and took the bolts out, “you could take that wood with your hand and pull it off, doAvn until it was nothing; what you might call just like ashes, most. The inside was plumb rotten.” He again expressly says: “The more this wooden circle worked, the more it dropped down, and that had been going on for some three months.” He was again asked if anybody could not see that, and lie stated that they could not; there was nothing there to see, and “that a man could not get in there and examine.” When asked if the plaintiff could have seen it, he said: “If he looked through the circle he could.” Redman further testified that Mr. McGinnis came from Tuscumbia, Alabama, having been previously notified fully of the condition of this machinery, for the purpose of inspecting it; that he only stayed about twenty or thirty minutes; walked around it, and directed him to tighten up the truck rods and to do some other wholly futile things; and that when, he (Redman) told him of the trouble with the machinery, and that the situation had given, him a great deal of trouble; that “the machinery ivas down so low on the bearings that it "would not go down, and showed him the condition, his response was: ‘Well, Johnnie, God damn it, go ahead anyhow.’ ” This was the remarkable conduct on the part of the appellant’s agent; this the style of inspection; this the utterly willful aud reckless disregard of the duty of putting this machinery in such condition as to be safe as regards the life and limbs of employes. Another witness, Smith, says that McGinnis said to Mr. Redman: “John, I cannot afford to stop the shovel now,” and that Redman said: “I don’t think that we can run it any longer; it has got to go to the shop,” and that Mr. McGinnis then said: “I can’t afford to stop it at this time; Memphis is wanting some gravel.” And again he stated that McGinnis said to Redman: “Try to get enough ahead to fill the orders, and then he would take it in the shop and fix it upbut before he did so the accident occurred.

Without wasting any further time on detailed statement of the testimony as to the negligence of the company, it is sufficient to say that it is overwhelmingly shown that the company was negligent; not only negligent, but manifesting the utmost unconcern as to the safety of the employes charged with the duty of operating this miserable machinery. We have quoted this much with the double purpose of shoAving the negligence of the company, and also of showing the very important fact that this negligence clearly renders the company liable on common-law principles, unless the plaintiff can be shoivn to have had knowledge of the rotten condition of this interior wooden work within the circle, and thus be shown to have been guilty of contributory negligence in continuing to operate the machinery after such knowledge. We think a clear case of liability is shown at common law, and we do not, therefore, deal with any asserted liability of defendant company under sec. 193 of the constitution. The only defense, therefore, which the appellant could possibly make, was to show, and to show clearly, that the plaintiff had knowledge of the rotten condition of the interior timbers of this machinery, sometimes called by witnesses “truck bolster,” the sinking of which is shown to be the proximate cause of the injury. We have given this record careful and painstaking examination on this point, with the result that we are unable to say that the verdict of the jury, which found that he did not know, is manifestly and plainly wrong. It was a question of fact for the jury to settle, and we think that, after the evidence is carefully considered, it must be held to be such, on this point, as that the verdict of the jury may fairly be supported. We certainly cannot say that it is manifestly wrong — the result of prejudice, passion, or corruption. As already, shown, the witness, Redman, an employe of the appellant itself, stated that the plaintiff could not have known the condition of this inside wood, unless he could have seen through the circle, and that he himself did not know it until after the machinery was sent to the shop and taken to pieces, so that the interior could then be examined. The appellee himself testified that he knew nothing about how the sinking down of the machinery occurred — “how the circle came to.be lower.” And he further expressly testified that he knew nothing of the rotten condition of the timber under the platform on which he stood. It may very well be that appellee knew that the circle, bound with iron bands, was without sufficient guards, and that he may have observed, generally, the condition of the machinery on the outside, open and visible to the naked eye; but these things were not the proximate cause of the injury, and it is fully shown, in this testimony, that he could not, by any possibility, have known of the utterly rotten condition of the interior timber of this circle. No amount of ingenuity .can obscure the plain fact that his injury was attributable alone to the rotten condition of the interior wood of this circle, or truck bolster, or wooden beam. It was well said by the United States supreme court, through Mr. Justice Harlan, one of the greatest justices that ever occupied a seat upon that exalted tribunal, in Hough v. R. R. Company, 100 U. S., 217 (25 L. ed., 612), that the “negligence of the master,' in respect to supplying physical means and agencies for the conduct of his business, is not one which the servant, in legal contemplation, is presumed to risk, for the obvious reason that the servant who is to use the instrumentalities provided by the master, has ordinarily no connection with their purchase in the first instance, or with their preservation or maintenance in suitable condition after they have been supplied by the master.” In Porter v. Railroad Co., 71 Mo., 66 (36 Am. Rep., 454), it is held: “It is not incumbent upon the servant to search for latent defects in machinery or implements furnished him by his employer; but he has, without any investigation, the right to assume that they are safe and sufficient for the purpose.” We think this is sound common sense, and sound law as well.

The plaintiff, Wiley, shows that when McGinnis and Redman and Smith “walked around” the shovel, he did not stay with them all the time while they were examining the machinery, and knew nothing about Mr. McGinnis’ orders as to repairing it. He says again positively that he did not know the condition of the machinery when he went to work there, but that, later on, he found out the condition of part of it, meaning, of course, the part he could see and observe. He further shows that he and Redman never had any talk “when the roadmaster came or after he came, about the condition of the machinery; that that was no part of his business.” Further he says, and this is very important, that he only walked around, the shovel once; that he walked around it to find out what McGinnis and Redman were talking about, and that Redman was showing him the tank trucks under the tank; that McGinnis did not instruct him to do anything, and that the only instructions he got were from Redman, and they were simply to “get some wrenches and tighten up the bolts.” He further says that he knew nothing about the washer being worn down, and never saw it until after he was hurt. The fact was, it was an improper one, did not fit, and was never used. He further says he never heard anything about sending the machinery to the shop, and that the failure to tighten the bolts had nothing to do with the accident. When it is remembered that we must take the whole testimony together, and that according to the testimony of Bedman, the appellant’s employe, he himself did not know the rotten condition of the timber until after the machinery had been taken to the shop, and that the plaintiff himself could not have known it unless he “could have seen through the circle” — that is; through the wood — and that the plaintiff’s testimony shows that he knew nothing as to the interior condition of these timbers, it cannot be said that the jury did not have evidence enough to find that the plaintiff did not know of the rotten condition of the interior timbers within this circle, unobservable to anybody on the outside. The crumbling and rottening and the gradual sinking was a continuous process, proceeding in a very slow and gradual way and on the inside of the circle. It was a latent defect, not a patent defect.

We are, therefore, clearly of the opinion that the verdict rests upon evidence amply sufficient to support it on the common law cause of action. The negligence of corporations in respect to machinery, ways and appliances, their refusal to use the improved appliances science is constantly affording them, although directed so to do by congress itself, has come to be known of all men and is an evil — a great and pernicious evil — that the courts of the country, so far as their legitimate power is concerned, should stamp out. There must be some regard, for the sacredness of human life; there must be more concern about the sacredness of human limbs, even if the lives and limbs be those of the employes of these great corporations. The “God-damn-it,-Johnnie,-go-ahead-anyhow” style of attention to the nondelegable duty of the master to supply to employes safe machinery and appliances can meet at the hands of this court nothing short of the sternest condemnation.

Let the judgment he affirmed.