Illinois Central Railroad v. Bishop

76 Miss. 758 | Miss. | 1899

Woods, C. J.,

delivered the opinion of the court.

The use of the plank on the hand-car is shown by all the evidence to have been employed by appellant and its employes continuously for at least fifteen years prior to the accident which resulted in the death of appellee’s son. Its use was not only customary, but is shown, also, to have not been a dangerous appliance.

The brother of the deceased, who was introduced as a witness for appellee, testified that the use of the plank was as safe as walking in a road. The use of the plank was not the cause of the injury complained of. The accident was caused directly by the improper position of the lever used in closing and fastening the draw-bridge.

The bridge-tender was not the superior of the section crew—• the alter ego of the railroad company. He was simply a fellow-servant of the deceased, and engaged in the same employment. He had charge of a small portion of the track in the section upon which the crew to which the deceased belonged worked. The ' small part of the track in this section which he had charge of was that part of the line where the rails of the track rested upon the superstructure which spanned Manchac pass, which connected Maurepass and Ponchartrain lakes. So far as his duties to the section crew were concerned, he had only to keep the draw closed and signal the crew to go forward. But his duty to give signals did not make him a superior officer of the section crew. He was no more a superior 'officer than any ordinary switchman, whose duty it is to open and close switches, is superior to conductors and engineers, whom he signals to go forward with their trains. If the lever to the draw-bridge was left in an improper position by him, it was the negligence of a fellow-servant simply. In what manner, or by what means, or by whose agency, the lever was left in an upright position on the occasion in question no where appears. But, we repeat, if it was improperly left upright by the bridge-tender, it was the negligence of a fellow-servant merely, for which the railroad company was not liable.

We need not determine whether the section foreman is a vice principal within the principles of any decision to be found in the Louisiana reports. The courts of that state have never held a section foreman to be a vice principal, but if they had so held, or if such character might be fairly imputed to him by reason of his being within the principles of any adjudication of the supreme court, still the plaintiff should not have recovered, because no negligence of the foreman was shown by the evidence.

We have already said that the use of the plank by him for seating a part of his crew was not negligence. The requiring the deceased to hold the keg, though improper, perhaps, was harmless, for the holding the keg in no way contributed to the injury. That was occasioned by negligence of the bridge-tender in leaving the lever upright, if we assume that he did negligently so leave it. A very careful examination of the Louisiana cases leads us to our conclusion.

Heversed and remanded.