Ingram-Day Lumber Co. v. Harvey

53 So. 347 | Miss. | 1910

Mayes, C. J.,

delivered the opinion of the court.

The Ingram-Day Lumber Company was engaged in a saw milling business, and in connection therewith operates a logging road. This logging road extended some distance from the mill into the woods, and was used for the sole purpose of hauling logs from the forest to the mill. It is claimed by Harvey that one of the employes of the mill told him, if he would go to the plant at the end of the road, he could get employment in the blacksmith shop shoeing horses. Acting upon this, Harvey went down one morning to the starting point of the road for the purpose of taking passage on the log train, to go where he claims he had been told by this employe that he could get work. On reaching the starting’ point he met the engineer, one Anderson, and claims to have asked Anderson if he could go out with him, and claims that the engineer told him he could.. This is denied by Anderson, and it is clearly shown that Anderson was only the engineer, and had no authority from the mill to give this permission, or employ, or promise employment to, anybody. Before the log train left, the superintendent, one Barrett, came down to take passage also. Barrett states that he told Harvey, before the train left, that he needed no one at the end of the line. Harvey denies this. ’ It is also claimed by Harvey that Barrett permitted him to get on the train. Barrett denies this, and says he did not know Harvey was on the train. However this may be, it distinctly appears from the record that Harvey took passage on this logging train in the furtherance of some purpose of his own in seeking employment, and according to his own testimony he had not been promised any employment by any one who had authority to do so for the mill. • In short, it is clear from the testimony that Harvey got on the train and started to the end of the'line without being told to get off by anybody, and this was all the invitation or permission given him. He was in the prosecution of his own purposes at the time, and assumed all risks save that of willful or wanton injury. After the train left, and while going at a rate of speed estimated by those in charge of the train to be from ten to twelve miles an hour, and.by Harvey to be thirty or thirty-five miles, it jumped the track and injured Mr. Harvey. Because of this he brings this suit, and in the lower court recovered a judgment, from which the lumber company appeals.

The track seems not to have been in good condition, and this may have occasioned the wreck; but a bad state •of repair is the universal condition of logging roads, put down for temporary use, and not intended for passenger traffic. Appellant contends that there is no liability on the part of the mill. If it is conceded that the road was in a bad state of repair, it must be remembered that this will not make the appellant liable to Harvey, ■even though the injury was the direct result of the bad •condition. The road took no passengers; it invited none ; it owed to the public no duty, because it was' not serving it. The only possible duty it assumed to Harvey was that it do him no willful wrong, and this is but a duty which rests upon all mankind to his fellowman, and has no special or peculiar application to this appellant. When Harvey took passage on this train .as he did, he is bound with a knowledge of the character of the road he was taking passage on and assumed the risk. He was not invited on the train; he had no right there. Under these -circumstances he could not ask that this road be conducted in a way different from which it was •ordinarily run, to the detriment of the business of appellant, in order that his safety might be specially provided for. Nothing in this record indicates that the operatives on this train handled it with such gross negligence as to indicate willfulness or wantonness.

The case of Illinois Central Railroad Co. v. Arnola, 78 Miss. 787, 29 South. 768, 84 Am. St. Rep. 645, lays down the rule of liability applicable to this case. In the Arnola case the court says, as to liability to a licensee, that a person is under “no duty except that of not inflicting willful or wanton wrong. A person who, without the invitation or inducement of the owner, goes upon the land or premises of such owner, takes such permission with all the dangers attending it. A master is not responsible to a servant for the negligence of a fellow-servant; a fortiori he is not responsible to a stranger for such negligence. The appellee, in going upon the private lands of the appellant, took upon herself all the risks of such entry. The damage suffered by her is not an injury for which an action lies. ’ ’ "What is said above applies to this case. This lumber company had constructed this road for the furtherance of its own business. The road is its private property, and as much exempt under the law from intrusion or invasion of strangers as if it consisted of private inclosed land.

Counsel for appellee cite with great confidence the case of Albion Lumber Co. v. De Nobra, 72 Fed. 739, 19 C. C. A. 168. An inspection of the above case easily distinguishes it from the case now on trial. In the De Nobra case it was shown that one Hickey had general charge of the road and logging camps, and had authority to employ men to work for the company; that the injured party applied to him for employment on the day of the accident, and was engaged to work for the defendant. It was shown that Hickey inquired if deceased had a blanket, and on being informed that he had blankets at a place called Big River Hotel, several miles distant, told him to get on the cars and go down there and get the blanket, and come up the next day and start to work. Hnder this promise of employment, and at the request •of the general manager, in furtherance of the business which he represented, the party took passage, and was killed by the negligence of the company, and of course it was liable. The above statement of the Be Nobra. case shows how widely these cases differ in their facts.

It is our judgment that no cause of action is shown by the facts of .this case, and it is reversed and remanded..