Allen v. Yazoo & Mississippi Valley Railroad

40 So. 1009 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

There was an original declaration filed in this case, and a demurrer filed thereto, which was sustained by the court. Afterwards an amended declaration was filed, which alleged in substance that Clarence Allen was a section hand, working on the Yazoo & Mississippi Valley Railroad; that he was under the control and orders of one Parker, an employe of the com-' pany acting in the capacity as foreman of the section gang, with the right to employ and discharge hands and perform such other duties as devolved upon a foreman; that these section hands under the direction of Parker kept the roadbed in repair and did other necessary work on the road. The declaration then alleges that on the 9th of June Clarence Allen, together with the other hands, was ordered by Parker to take the hand car and proceed up the railroad to a certain switch near the-city of Greenwood, for the purpose of working on same; that Clarence Allen, accompanied by the other hands and acting under the order and control of Parker, took the hand car and were proceeding to where the switch was located, where they were to commence their work, when they discovered that the hand car was rapidly being overtaken by a passenger train on the road of the company; that immediately Parker ordered the hand car stopped and taken from the track. Appellant and the other hands stopped the hand car as rapidly as possible and lifted a part of the hand car from the track. While it was in this condition Parker, the foreman, negligently and carelessly ordered Clarence Allen to remove the part remaining, •which, the said Allen attempted to do, when the said passenger train knocked the hand car from the track and plaintiff was injured by the hand car, being seriously hurt, which injury was occasioned by obeying the orders of said Parker in trying to remove the hand car from the track. The second count of the declaration avers that while Clarence Allen was employed as alleged in the first count, and while acting under the orders of Parker, section foreman as aforesaid, in attempting to remove the remainder of the hand car from the track of the defendant company, the employes of the company in charge of the passenger train saw the situation of the plaintiff in ample time to stop said train, but negligently, recklessly, willfully and wantonly kept said passenger train at a high rate of speed and caused the same to knock the hand car from the' track, and seriously wounded and injured the said Clarence Allen. To this amended declaration another demurrer was interposed, setting up, first, that the amended declaration showed no cause of action; second, that the declaration showed that plaintiff was guilty of contributory negligence, in that he exposed himself in front of a moving train; third, the declaration showed that plaintiff was not exercising ordinary care at the time he received the injuries; fourth, that the declaration showed that plaintiff’s injuries were received while performing an act in obedience to orders, when the dang'er was so obvious that no man of common sense and prudence would have at- • tempted it. The demurrer to the amended declaration was sustained by the court, and, the plaintiff having declined to further amend, a judgment was entered dismissing the suit.

We think the court erred in sustaining the demurrer to the declaration. The declaration shows that a passenger train was approaching; that the section foreman ordered his hands to remove the hand car, and while they were attempting to do it they were in view of the employes of the passenger train; and 'that there was ample time to have stopped the train, but that the train was negligently, recklessly, willfully and wantonly run at a high rate of speed, and that this caused the collision' with the hand car and consequent damage to plaintiff. As it has been aptly put in the case of Bell v. Southern Ry. Co., 87 Miss., 234 (s.c., 30 South. Rep., 821), by Whitfield, C. J.: “So many questions are integrated usually into the solution of the question of negligence, it is so necessary to carefully examine all the circumstances making up the situation in each case, that it must be a-rare case of negligence which the court should take from a jury.” Bell v. Southern Ry. Co., 87 Miss., 234 (s.c., 30 South. Rep., 821) ; Shroeder v. Chicago & Alton Ry. Co., 108 Mass., 322 (18 S. W., 1094; 18 L. R. A., 827) ; Texas & Pac. Ry. Co. v. Lewis (Tex. Civ. App.), 26 S. W., 873; David Britton v. Northern Pacific R. R. Co., 47 Minn., 340 (50 N. W., 231) ; Stephens v. Hannibal & St. Jos. R. R. Co., 96 Mo., 207 (9 S. W., 589; 9 Am. St. Rep., 336).

Beversed and remanded.