47 Miss. 404 | Miss. | 1872
John Wilkins, being an employé of the Yicksburg & Meridian R. R. Co., suffered a serious injury in his person while so employed, to recover damages for which he brought suit in the circuit court of Rankin county. A trial was had at the August term thereof, 1872, resulting in a verdict of ten thousand dollars for
The facts elicited on the trial do not appear to he seriously disputed. We quote the evidence nearly entire as set forth in the record. The injury was described by Dr. Craft, who testified that the wound was in the urethra, resulting in a hole, which he considered permanent, between the anus and privates; that if plaintiff should have a bowel disease, owing to the character of the wound, it would be aggravated, and he would be unable to control his bowels; that a venereal disease would go harder with him than with others not so injured; yet, that he might go through life and live to a good old age without any serious inconvenience from it; that it was his impression the plaintiff would never be able to beget children.
The plaintiff, in his own behalf, testified that he was in the employ of the railroad company as fireman; that the injury occurred on the morning of July 15th, 1869, at the Brandon depot; he was employed on a ditching train, which did not run on schedule time, a much easier and a more desirable birth than on the regular trains; on the morning of the injury he went to fire up the engine, which was the “ Louisianawhen she had on 45 or 50 pounds of steam he discovered the throttle valve open, which he screwed up and closed, but • knew that a part of the thread on the screw was broken off and it would not hold; he then proceeded to fix the bolt in the cellar box; when in front of the bumper and stooping to fix the bolt, the engine moved and caught the witness between the bumper and a flat car standing a few feet in front on the track, inflicting the injury described by Dr. Craft; the engine had no pilot or “ cow-catcher,” and the brake was defective; it was notorious to the employes that the throttle valve leaked; the defect in the throttle valve was the cause of her moving that morning; he did not examine to see whether
The engineer testified, that he was a practical engineer ; was so employed by the V. & M. R. Co. when Wilkins was hurt; he put up the engine the night before in good order, with the reverse lever in the top notch; when he reached the engine after the accident, he found the lever at half stroke and the throttle valve half open; the cause of the engine moving was that the throttle valve was open; which was from its defect; it was his custom, but not the orders of the company, for the fireman to oil the machinery ; if in so doing he found any bolts out of place, it was his dutjr to put them in place; if he reported any out of place, witness ordered him to fix them; he was on that engine three or four months before the injury; she was not safe and reliable; if the reverse lever was in the centre notch, and the throttle valve open, she would move two or three feet back and forth; he continued on that engine after the accident; the plaintiff was doing what witness required of him when hurt.
On cross-examination this witness stated, that with careful management this engine was safe enough; she was good and safe enough for ditching purposes; he did not report the engine as defective; the plaintiff and all others on the train knew the throttle leaked; the company did not, but witness did require the fireman to fix the cellar bolt; according to contract it was more
Henry Wilkins testified, that he ran on this engine as engineer when it was on the accommodation train; the engine was defective, and he reported her to the master machinist, who took her off the regular train and sent her to Brandon on the ditching train; had been in the employ of the company eight or nine years as fireman and engineer; considered the engine unsafe; he knew a new engine to move off with the reverse lever all right in the centre notch; the Louisana started with him once before the plaintiff was hurt, because the throttle leaked.
On cross-examination this witness testified, that if the throttle' of the Louisiana engine was shut exactly right, she was safe; she was an old and unsafe engine as all the employees knew; he had reported this engine five years before to the master machinist; he had never
Jacob Hurtzell testified, that he was fireman on the engine Louisiana for three or four months after the plaintiff was hurt; and Miller continued on her as engineer; neither Miller nor himself reported her; she was not dangerous with proper care; no man of ordinary prudence would have done as plaintiff did, in attempting to fix the cellar bolt without scotching the wheels to prevent the moving of the engine.
On cross-examination this witness stated that an engine with a throttle that leaks will move with the lever in the centre notch; it was a matter of choice whether firemen oiled or not; witness succeeded Wilkins as fireman on the Louisiana; he was before then on a passenger train ; after Wilkins was hurt he applied for and obtained his place, because it was an easy place, at the same wages; with careful management this engine was not dangerous; when he went under her as plaintiff did, he put wood under her wheels, which insured his safety; he is now an engineer.
The plaintiff was recalled and testified further, that he went upon the engine and found the throttle valve open, and turned the thumb screw to fasten or close it, but the thread of the screw was partly gone, and he did not believe it would hold; this was just before he went to fix the cellar bolt.
This was all the testimony in the case, and may be epetomized thus: Wilkins, the plaintiff in the action, was a fireman on the engine Louisiana, in the employ of the defendants, the Y. & M. R. R. Co., and had been so employed for about two years ; that the said engine was defective and was known to be so to Wilkins and all the employees on or about said engine ; that the defects in said engine which led to the accident and which were known to Wilkins, consisted of a throttle valve, which
The right of an emyloyé of a railroad company to recover damages of the company for injuries while so employed, though familiar to the courts of other states, is for the first time before the courts of Mississippi.
In support of the liability of the company, it is contended,
2d. “If the defendant in error was under the control and direction of Miller the engineer, and was injured while doing that which Miller ordered him to do, the plaintiff in error is liable ;” citing, 52 Ill. 140; 1 Redf. on Railw. 526.
3d. “ As to defendant in error continuing in service of plaintiff in error after knowledge of defects in machinery, see 1 Redf. on Railw. 518, note 2; ib. 520, 524 and note.”
4th. “ Even if Wilkins was negligent, which if not shown, by the proof, yet, unless such negligence was the direct and proximate cause of the injury, he may recover. Sedg. on Dam. 563; Saund. on Neg. 55, 56, 57, 58, 59.
Turning to the authorities to which our attention is invited, we find that the Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. 541, was an action by the conductor against the company, on whose trains he was running, to recover damages for injuries received, on the ground that the injury was the result of the insufficiency of the cars, and defects in the machinery and fixtures of the train. The court say: “ It was the duty of Barber, as the conductor of the train, to use ordinary and reasonable skill and diligence on his part, not simply in the management of the train, but also in supervising the due inspection of the cars, machinery and apparatus, as to their sufficiency and safety while under his charge; and on the discovery of any defect or insufficiency, to notify the company, and to take the proper precaution
The marked difference between the case at bar and the basis of the adjudications from which we have quoted, is too distinct to need special reference; and the rules stated by the text writers seem only to present in clearer contrast the dissimilarity already observed. It is co ceded, that if there be any fault in the selection
The principles discussed in the foregoing adjudications are variously stated by text writers and eminent jurists. Sedgwick, on Damages, quoting with approval Starkie on Evidence, gives this rule: “ In an action for an injury occasioned by the negligence of another, it is a good defense to show that the injury so far arose from the negligence of the plaintiff himself, that he might by ordinary care and caution have avoided the injury.” Sedg. on Dam. 103. “ So in case, though the party charged be in fault, yet, if the proximate and immediate cause of the accident be the unskillfulness of the plaintiff, there is no relief.” Ib. 104. Lord Ellenborough in Butterfield v. Forester, 11 East, said : “ A party is not to cast himself upon an obstruction which has been
It is not, however, our purpose to adjudicate these rules further than is necessary for the determination of the case at bar. The fireman was firing up, oiling the ■machinery, etc., in the absence of the engineer. He was not performing this service under the immediate supervision of the engineer, and in the manner prescribed by him, but was at liberty to exercise all the care and prudence, and observe every precaution of which the service was susceptible. He could have adjusted the cellar bolt before firing up, or from the outside of the engine, without going upon the track in front; he could have stepped aside, off the track, instead of backing up to the car, between which and the engine he was caught and injured; he could have examined and adjusted the reverse lever; and he might have placed blocks of wood under the wheels, which would have secured the .engine against all possibility of moving. The engineer was not present, requiring this service to be performed without these precautions. If he were, a more formidable question would be presented, not now involved. The fireman was alone, his own master, free to perform the service in any mode most agreeable to himself. Assuming the evidence in the record to be undisputed, he chose to conduct this duty in a most gross and reckless disregard of his own safety, in the face of known and notorious danger. Unless the Vicksburg & Meridian Railroad Company guarantees employés against their own negligence and folly, the company cannot be made liable upon the facts presented in the record.
Judgment reversed and cause remanded.