71 Miss. 987 | Miss. | 1894
delivered the opinion of the court.
The real, question in this case is as to the validity and obligation of the rule of the company requiring coupling and uncoupling of cars to be done by means of sticks, and forbidding the going between cars when an engine is attached. If this rule was in force, and obligatory on Rush, he certainly is not entitled to recover for an injury sustained in its violation. He knew the rule, and had contracted with reference to it, and, if he violated it and sustained injury in consequence of it, he cannot be heard to complain of his employer. He cannot shelter himself under the order of the conductor, for, even if it is conceded that the conductor, in directing the uncoupling, was “ a person having the right to control or direct the services of the party injured/"' within the meaning of § 193 of the constitution of 1890, it cannot be held that he was under any obligation to obey an order of such person to violate the rule equally obligatory on the conductor and himself. Therefore the question whose resolution will decide this case, is as to the rule mentioned. It seems to be a very proper rule, and if it was in force and dis
It is apparent that the trial court had a correct view of the decisive question in the case, and yet gave two instructions, drawn by the learned counsel for the plaintiff’, by which the plaintiff may have obtained the verdict he got, without any regard to the rule in question. The first instruction for the plaintiff omits all reference to the rule, and entitles the plaintiff to recover if he acted upon the conductor’s order, and suffered hurt from the negligence of the conductor in too soon giving the signal to the engineer to move. The fifth instruction makes the conductor’s knowledge of the uncoupling without a stick, and too hastily causing the movement of the train, ground for recovery. Under these instructions the jury could'hardly fail to find for the plaintiff, al-though correctly instructed otherwise perhaps: Both are wrong, and should have been refused. Be the relation of the conductor to the brakemen what it may, he surely had no authority to dispense with an existing rule made for him .and for them, and neither his order nor his acquiescence, as to 'its violation, could give any right or have any just influence in the case.
What we have said is sufficient to dispose of this case, and we will not pass upon any other question, as that discussed is the decisive one upon which the case must finally turn. We would not be understood as approving all of the instructions given for the defendant, but, regarding the question as to the rule involved as the only material one, will not decide .any thing else.
Reversed, and remanded for a new trial.
