47 So. 657 | Miss. | 1908
delivered the opinion of the court.
There was evidence offered in this case on behalf of the plaintiff tending to show that Matthews, who was a brakeman in the employ of the defendant company, was killed by a slowly backing train while engaged in setting out a car on an industrial
In the light of the evidence thus briefly rehearsed, we - cannot say as a matter of law that the brakeman was guilty of such contributory negligence as would preclude recovery. Of course, employees must not wilfully disregard the rules of the company, but liability cannot be avoided solely on the ground that, a rule ha.s been violated, unless the company is, itself without fault in the promulgation of the rule, not shown to have been brought to the actual notice of the employee. To say the least of it, it was for the jury to say whether this rule was known to Matthews, or whether, by the exercise of reasonable diligence on his part, it could and should have been known, and, further, whether by reason of the frequent disregard of the rule by employes, this rule could be said to have been virtually abandoned. White v. Railway Co., 72 Miss. 12, 16 South. 248. Upon the subj ect of unblocked frogs, we feel it o-ur duty to say
“That a railroad company is liable in damages to its employees who themselves have been guilty of no fault for its negligence in having its switches so constructed as not to be reasonably safe, having reference to the nature of railway switches and the dangers which necessarily attend them, must be regarded as a truism, following from the general doctrines stated and illustrated in this chapter. The observance of the rule of reasonable care is demanded of the company, to the end that its switches shall be so constructed without impairing their efficiency as switches, that its employees may pass over them in the discharge of their duties without danger.
“The decisions of the courts have been very generally to the effect that for a railway company to fail to block its frogs or switches in consequence of which failure its employees get their feet caught therein and are killed or maimed, does not constitute actionable negligence, but that the risk of injury from this source is one of the risks of the service which the employee accepts. But this is not the universal doctrine, nor is it worthy of the least commendation. The better doctrine is that a railroad company owes its employees the duty of so maintaining the blocking in the space between the guard rails and the main rail*340 that the heels aud soles of their boots will not be caught therein and where there was evidence tending to show that the defendant was guilty of negligence in that respect by reason whereof a. switchman caught his foot between the guard rail and the mam rail and was run over, and there was no evidence on which it. could be held as a matter of law that the deceased assumed the-risk or was guilty of contributory negligence, it was held that the trial court properly refused to take the case from the jury.”
We are bound to conclude that the peremptory instruction in-this case should not have been given, but that the case should-have gone to the jury on proper instructions.
Reversed and remanded.