42 So. 174 | Miss. | 1906
delivered the opinion of the court.
The chief contention in this case is that the construction company was a railroad corporation, within sec. 193 of the constitution, in operating the train in question. The argument, broadly stated, is about this: That sec. 193 of the constitution of 1890 can only be upheld, as not violative of the constitution of the United States, upon the ground that the business of railroad corporations, in operating their trains, is inherently dangerous, and that this inherent danger furnishes the chief basis for distinguishing between the employes of railroad corporations and the employes of other corporations, the nature of whose business is not inherently dangerous; that this was the ground of the decision ' in the Ballard case, 81 Miss., 555 (s.c., 34 South. Rep., 533); 62 L. R. A., 407; 95 Am. St. Rep., 476; that the true intent and meaning' of said sec. 193, looking to its spirit, and not to its letter, is that the words “railroad corporation” in that section should be made to embrace any person or any corporation, whether chartered as a railroad corporation or not, while it may be actually operating, at the time of any alleged injury, railroad trains; that we are not to look at the name of the corporation, or even at its charter,
It is said that a mining corporation, or a lumber corporation, which builds its own private railroad for use in connection with its lumber or coal business, is engaged in a railroad business as inherently dangerous, though it may be in a less degree, as a railroad corporation proper, a commercial railroad, and that, unless the employes of the former are protected by said sec. 193, said section is violative of the fourteenth amendment of the constitution of the United States. On this ground the counsel for the plaintiff assail said sec. 193, as interpreted in the Ballard case, as violative of the fourteenth amendment of the constitution of the United States for the reasons set out above. Curiously enough, the counsel for the railroad company also assail said sec. 193 as unconstitutional, in their reply to counsel for plaintiff, on the ground that the Ballard case did not go far enough, insisting that in the Ballard case the court ought to have held that the employes of railroad corporations meant the employes of railroad corporations while engaged as common carriers in trans
What, now, are the answers — addressing ourselves to the precise question here involved — to be made to the contention of counsel for the appellee that the Bradford Construction Com
What is the plain and simple history of the adoption of this section? We set it forth fully in the Ballard case as follows: “Sec. 193 of the constitution of 1890 was adopted after the decision of the United States supreme court in Missouri R. R. Co. v. Mackey, 127 U. S., 205 (8 Sup. Ct., 1161; 32 L. ed., 107), in 1888, and was manifestly intended to authorize legislation along the lines held constitutional in that case — that is to say, to abolish the fellow servant rule in the case of employes of railroad corporations whose business was known to be inherently dangerous — and the purpose of the last clause of sec. 193 was to extend the remedies therein provided for to any other class of employes of corporations or persons whose business was, like that of railroads, inherently dangerous, or whose business was so different from the business of other corporations or persons as to furnish the basis for a classification of the business of such corporations or persons, under which their employes might be permitted to sue without reference to the fellow servant rule, while
There never was a wiser building than the writing of this sec. 193. New abler lawyers ever lived than had a hand in the drafting of that section. That great jurist and statesman, the late Senator George, is well known to have been its author. The purpose he, and those associated with him, in framing this section, had in mind, was not to provide, in a section in the organic law of the land, a remedy for all employes of all corporations, or of all persons, but to go slowly, surely, and safely, by providing only such remedy as the supreme court of the United States had already said might be provided without violating the fourteenth amendment of the constitution of the United States — to abrogate, as far as safely might be done, the absurdities of the fellow servant doctrine. They did not wish to be “hoisted by their own petard,” by framing a section which would be wholly stricken down by that great court; for, knowing the decisions of that court up to that time, as we particularly pointed them out in the Ballard case, they knew that the United States supreme court had in the Mackey case, supra, sanctioned legislation giving to the employes of railroad corporations proper — such railroads as are sometimes known as “commercial railroads,” engaged in the transportation of freight and passengers — remedies denied to such employes of other corporations. They knew that that classification had been vindicated upon the ground that the business of such corporations was inherently dangerous. They knew that they might, therefore, follow in the footsteps of the United States supreme court in going that far; and they went that far, for that reason; and they went no farther, for that very wise reason. And so, as we said in the Ballard case, if it be only correctly and carefully read, the whole scope and purpose and spirit of said sec. 193 of our constitution is to give the remedies therein given to the employes of railroad colorations proper, such as are engaged in the transportation of freight and passengers, and to such railroad corporations alone. It might be wise to extend
In Griggs v. Houston, the supreme court of the United States held that a construction company was not a railroad company within the meaning of secs. 1166, 1167 of the code of Tennessee of 1858, visiting penalties upon a railroad company injuring any person or animal by reason of failing to observe precautions marked out by the statute. In Williams v. Lumber Co., from the United States circuit court for Minnesota, whose state supreme court holds a contrary doctrine, it was held that sec. 2701 of the general statutes of Minnesota of 1894, providing that any railroad corporation owning or operating a railroad in Minnesota should be liable for all damages, etc., did not apply to a logging railroad built and operated for private purposes, and
In Palangio v. Lumber Co., it was held that a railroad constructed and operated by a manufacturing corporation in its private business was not a railroad corporation within the meaning of sec. 141, ch. 51, of the revised statutes of Maine, which made railroad companies liable to pay laborers employed by contractors under certain conditions. The court said: “Surely it is impossible to regard such á corporation as a railroad company. It does not possess one of the distinguishing characteristics of a railroad company. True, the company has constructed a roadbed upon its own land, upon which it had placed sleepers and iron rails for the transportation of its own lumber from its own lands. . But this no more makes it a railroad company, within the meaning of the law, than the construction of a camp in which- to feed and lodge its laborers would make it a hotel' company. An individual can lay a railroad track upon his own land for his own use, without obtaining a railroad charter, and without thereby making himself a railroad company; and so can a lumbering corporation.
The case of Beeson v. Busenbark is unanswerable, in our opinion, upon this particular proposition. In that case it was decided that a firm or partnership composed of private persons was not a railroad corporation within the meaning of sec. 1251 of the general statutes of 1889 of the state of Kansas. In this particular case the Kansas & Colorado Railroad Company engaged certain contractors to construct its road, which contractors sublet such construction to Beeson & Selden. Beeson & Selden were simply private persons constituting a partnership to con
We have read, with great care, every authority cited by learned counsel for appellee, and we shall notice the chief ones as briefly as the limits of the opinion will allow. The two English cases referred to construe the English employer’s liability act, and were so decided manifestly because of the language of the áct. Mathew, J., in Cox v. Great Western Railway Co., 9 Q. B. D., 109, says: “The language of the act is that the plaintiff can only recover against his employers where he has sustained an injury ‘by reason of the negligence of a person in the service of the defendants who had the charge of any signal, points, locomotive engine, or train upon a railway.’ ” In other words, that act entitled, one to recover for the negligence of any person who had charge of a train upon a railway. Aiid so Pollock, B., in Doughty v. Firbank, made the same construction in 10 Q. B. D.,
Railroad Co. v. Phillips, 90 Ga., 829 (17 S. E. Rep., 82), is no authority for the position of appellee, but might furnish some sort of authority for holding the Gulf & Ship Island Railroad Company liable on the facts in this case. The case of Union Pac. R. R. Co. v. De Busk, decided by the Colorado supreme court and reported in 20 Pac. Rep., 752 (3 L. R. A., 350; 13 Am. St. Rep., 221), is to our mind a thoroughly unsatisfactory opinion in every respect. We decline to approve any of its reasoning, or its conclusion. In that case the court absolutely held that the phrase “railroad corporations” should embrace “any body, company, or association or persons, whether technically incorporated or not, engaged in the operation of railroads,” and apologizes for its construction of these words by saying they did so “to avoid the necessity of declaring the act unconstitutional as violating the fourteenth amendment.” This objection, which, by the way, runs through nearly all the cases taking the view of the Minnesota supreme court, is not tenable. It is well said by the supreme court of Missouri in Humes v. Mo. Pac. Ry. Co., 82 Mo., 221 (52 Am. St. Rep., 369), in meeting this objection: “It is further alleged against this statute that it is partial and special because it ‘is directed against railroads alone, while no
Union Trust Co. v. Kendall, 20 Kan., 515, holds simply that the Union Trust Company, in its capacity as trustee of the railroad, was within the statute providing that every railway company or corporation in the state, and every assignee or lessee of such corporation, should be liable, etc. Rouse v. Harvey, 55 Kan., 589 (40 Pac. Rep., 1007), likewise holds that a receiver is within a similar statute. Wall v. Platt, 169 Mass., 398 (48 N. E. Rep., 270), also holds that receivers are within the language of the Massachusetts act providing that every railroad corporation shall be responsible, etc. Farrell v. Union Trust Co., 77 Mo., 475, also holds that a trustee of a railroad is within the provisions of such statute. Sloan v. Cent. Iowa R. R. Co., 62 Iowa, 728 (16 N. W. Rep., 331), also holds that a receiver is within such a statute; that statute, however, saying “persons owning or operating railways” should be liable, and the court held that the receiver was a person operating a railway within the meaning of that section. The truth is that there is a good deal of confused writing as to the liability of receivers, trustees, etc., of railroad corporations, within the meaning of the various employer’s liability acts. The reason at the core of all such liability is that the real defendant in every such case is the railroad corporation, and not the receiver. When that distinguishing feature is clearly held in view, there is no difficulty in the decision of any of these cases. The matter was put on its proper ground by the supreme court of the United States in McNulta v. Lockridge, 141 U. S., 327 (12 Sup. Ct., 11; 35 L. ed., 796), where the. court say: “We agree with the supreme court of Illinois that it
We have reviewed these leading authorities cited by the learned counsel for appellee to sustain their proposition that the Bradford Construction Company is to be treated, whilst operating this train, as a railroad corporation, within the purview of said sec. 193, and we think that we have demonstrated that each case cited was upon employer’s liability acts materially different from sec. 193 of our constitution, or that they are, in the two or three instances pointed out, wrongly decided, or decided rightly for \Vrong reasons. We are clearly of the opinion that said sec. 193 of our constitution applies to railroad corporations proper, which are engaged in the business of common carriers transporting freight and passengers, and not to logging railroads and lumber railroads and the like, owned or operated by individuals, corporations, or partnerships, as adjuncts to their main business. We leave undecided, for the present, the question whether, granting that the railroad corporation involved in the particular ease is a railroad corporation proper, engaged as a common carrier in transporting freight and passengers, it would not be liable, under said sec. 193, to its employes, if at the time of the injury it were engaged in constructing some new railroad or branch railroad, or in hauling coal and gravel and the like from mines and pits. We decline to anticipate anything. We decide only the case before us, but we refer, as shedding light on this question, to Gulf Railroad Co. v. Howard (Texas Civ. App.) 75 S. W. Rep., 803, where the court held that a somewhat similar provision
It manifestly never was the purpose of the constitution-makers in said sec. 193 to give to all employes of railroad corporations the remedies therein provided. They meant such employes as were imperiled by the hazardous nature of the business of operating railroad trains. The very ground upon ‘which the United States supreme court all along held that -such legislation was constitutional was that the nature of the business of operating railroad cars is inherently dangerous. It would be absurd to hold that there was any inherent danger in 'discharging the duties of ticket agent, or telegraph dispatcher, -or many other officers in which employes of railroads are at work. It would be equally absurd to hold that employes of a ^railroad corporation engaged in the construction of a round Rouse, or in any otRer work not at all connected with the oper
So far as the first contention of counsel for appellee is concerned, it is sufficient to say that it is without real merit. The Gulf & Ship Island Railroad is out of the case by the judgment of the court below, unappealed from, and the evidence in the case shows that Heflin was the servant of the construction company.
And, so far as the contention that the Ballard case is unsound, it is sufficient to remark, first, that that case was considered for two years by this court; second, that it was argued four times orally; third, that it received the concurrence of five of the judges of this court; fourth, that every argument that has been advanced now to show that the mere fact of incorporation was a defense was earnestly pressed in the argument of the Ballard case; fifth, that that case has stood as the law of the land for some years without question. It is simply waste of time to ask this court to overrule a case so thoroughly and patiently considered, and which has been so long established as the law of the land.
The fourth and last contention of appellee is that Heflin was not a fellow servant of the engineer, even at the common law. We have carefully considered the cases cited under this head, but we find ourselves constrained by the decisions of this court in the past, which all know went to the utmost verge in extending the fellow servant doctrine, to hold that Heflin must be regarded as such fellow servant, even if regard be had to the fact that at the very moment of the injury he was not shoveling dirt from the rails, hut assisting in replacing the appliance which had become misplaced on the flat car.
Reversed and remanded.