Yazoo & M. V. R. v. Cockerham

99 So. 14 | Miss. | 1924

Sykes, P. J.,

delivered the opinion of the court.

This suit was instituted in the circuit court to recover damages because of fatal injuries sustained by I. Gr. Cockerham, a brakeman in the employ of the appellant railroad company. The suit is brought under the fe4eral Employers’ Liability Act (IT. S. Comp. St., sections 8657-8665). The deceased, Cockerham, sustained fatal injuries while attempting to effect a coupling between the tender of the engine and the first car of the train.

The cause was submitted to the jury and a verdict returned in favor of the appellee, administrator, plaintiff in. the court below, for the sum of thirty thousand dollars. Judgment for this amount was rendered. From which judgment this appeal is here prosecuted.

The declaration was in two counts. The first count upon which the cause was tried and judgment rendered in effect alleged.that the car which deceased was .attempting to couple to the engine had a defective coupler in which a nail was placed instead of a cotter pin; that by reason of this defective appliance when the engine backed into the car to make the coupling the cars failed to couple. Whereupon the deceased brakeman stepped between the engine and car to fix the coupling when the engine backed against him fatally injuring him. It is unnecessary to state the second count of the declaration. There was a plea of the general issue to the first count of the declaration.

The real question in this case is whether or not the coupler on the car was defective under the federal Safety Appliance Act (IT. S. Comp. St., sections 8605-8623) in that the couplers would not couple automatically by impact. That part of section 2 of this act in question here (27 Stat. 531 [IT. S. Comp. St. section 8606]) is as follows :

“It shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”

The testimony in the case shows that the accident occurred in the morning at Cleveland, Miss. The deceased brakeman rode to the scene of the injury on the tender of the engine for the purpose of coupling the engine to the train. Before his engine reached the train he stepped to the ground, and whether or not he tried to operate the coupling apparatus by the use of the lever with his hand is not shown. No eyewitness testified fully to all of the deceased’s movements after he stepped from the tender of the engine. He signaled the engineer to back into the train for the purpose of effecting a coupling. The coupling was not made. The deceased then signaled the engineer, to go forward and shortly thereafter the engineer states he received another signal from the deceased to back into the train, and did so, and Cockerham was mashed between the two drawheads and sustained fatal injuries.

After Cockerham was injured the coupling apparatus on this car was examined. It contained a nail bent into place instead of a cotter pin. It is the theory of the appellee that this nail prevented the coupler on this car from working properly and coupling automatically by impact.

The foreman .of the car department at this point testifies that he examined this coupler shortly after the accident, that there was a nail in it instead of a cotter pin, but that the coupler was in first class condition as far as the operation was concerned; that he broke this nail in making his investigation and replaced it with a cotter pin. The next morning another examination was made of this coupler, and tests were made to see. whether or not it would couple automatically by impact. Before these tests were made the cotter pin was taken out and a nail similar to the one in the coupler at the time of the accident was put there instead of the cotter pin. The testimony at to what happened at this time has received our most careful consideration. Several witnesses for the appellant company testified to the proper working of this coupler. While on the other hand other witnesses who were present at this investigation testified to the effect that the coupling could not be made in the ordinary way; that they tried to make the coupling two or three times but failed; that the witness then told the foreman he would show him how to make the coupling; witness then held the lever up to keep the knuckle lock from hitting the side of the drawhead; he dropped the lever and the lock fell and held it clear so that there was no' chance for the block to drop; that he did this by manipulating the lever; that the effect of the use of the nail in place, of the cotter pin was that it stuck out far enough to keep this part of the appliance from properly falling; that the nail would rest on the top of the draw-head to keep the lock from properly falling; that, if you hold it clear and let it fall clear, it would not hang; that, when the lock did not fall, it would not couple by impact; that it was not necessary to go in between the cars to make this coupling, but that he could hold the lock clear of the drawhead with the lift lever; that the nail would hit the top of the drawhead and interfere with the coupling if you did not hold it clear. This witness further testified that in order to effect this coupling it was necessary to hold the lift lever up until the impact, and that this was not the customary way of operating the lift lever; that in the ordinary use of the lift lever a brakeman is not required to hold the lever after its proper manipulation. There1 was also testimony to the effect that the drawhead on the car showed evidences of having been scratched by the nail, from which it could be inferred that the nail interfered with the proper working of the appliance.

During the trial of the case experiments were made in the presence of the jury. A' similar car with a like draw-head was there used and a nail used in place of the cotter pin. F,rom this testimony it is impossible for us to tell just exactly what took place in the presence of the jury.

From all of this testimony we think the jury was warranted in believing that the coupler on the car which the deceased was attempting to couple would not couple automatically by impact when the lever was manipulated in the ordinary way, but it was necessary not only to ma-. nipulate the lever, but to hold it in proper position until the coupling was made, and that the usual method is not to continue to hold the lever after it had been properly manipulated.

There was no testimony in the case to show whether or not the deceased had knowledge of the alleged defect in this appliance or knew that the coupling could be made by holding the lift lever at the time of the impact.

It is the contention of the appellant that under all the testimony it was entitled to a peremptory instruction because it devolves upon the plaintiff to show that the deceased attempted to make a coupling by the use of the hand lifter before going between the cars. To quote the -exact language of counsel for the railroad company as to their contention in this case:

“Our contention is that if it was possible to couple the cars by impact by the brakeman using and manipulating the lever at the end of the car, and he failed to use and manipulate such lever, and is injured, then the brakeman is the author of his own injury, and there can be no recovery. ’ ’

The Safety Appliance Act imposes upon railroads the absolute duty to maintain its couplers in such condition that they will always couple automatically by impact, and a failure to do so makes them liable for any damages resulting therefrom_ to the employee attempting to make the coupling. Railway Co. v. Dennis, 128 Miss. 298, 91 So. 4; Railroad v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Delk v. Railroad, 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590.

In many of the cases there was no defect shown in the coupling appliance save the fact that the injured employee attempted to manipulate the lever which for some reason failed to work. In the case at bar while the testimony is silent as to any attempt to manipulate the lever, yet the testimony of the plaintiff is to the effect that the coupling appliances would not at all times work by the usual and customary manipulation of the lever. We think the jury were warranted from this testimony in believing this appliance defective and that it was not necessary before a recovery may be had to prove that the employee attempted to use the lift lever on the defective coupling appliance.

The peremptory instruction for the 'defendant was properly refused.

The instructions when considered as a whole properly submitted to the jury the question of liability under this act.

The beneficiary in this suit is the mother of deceased. Deceased at the time of his death was thirty-two years old. His mother, the beneficiary, was in her sixty-sixth year. The deceased contributed to her support probably nine hundred dollars a year. The life expectancy of Mrs. Cockerham was a little over eleven years. For ten thousand dollars she could purchase an annuity,.in an insurance company of over one thousand dollars a year. We therefore think her pecuniary loss for which she is entitled to compensation would amount to a sum not exceeding ten thousand dollars.

In addition to this she is entitled to recover for the pain and suffering of the deceased from the time of his injury to the time of his death. He lived probably about eight hours and suffered intense pain as a result of these injuries. He was badly mashed through the body and had a number of his bones crushed. During this time he was under the care of and was being administered to by competent physicians. We think five thousand dollars is amply sufficient as- a recovery for the pain and suffering.

For these reasons it follows that in our opinion the verdict in this case is grossly excessive. If the plaintiff (appellee) will enter a remittitur of fifteen thousand dollars the judgment will be affirmed; otherwise, it will be reversed and the cause remanded.

Affirmed and remittitur.