40 So. 746 | Miss. | 1906
Lead Opinion
delivered the opinion of the court.
It is perfectly manifest that the exception expressed in sec. 193 of the constitution, which, as to conductors and engineers in charge of dangerous or unsafe engines or cars voluntarily operated by them, still permits their knowledge of the dangerous or defective condition of such cars or engines to be interposed to prevent their recovery for injuries caused thereby, does not apply to other classes of employes. Certainly not to a section, foreman, as was the appellee in the instant case. Buckner v. Railroad, 72 Miss., 878 (18 South. Rep., 449). The exception referred to is applicable solely to “conductors and engineers,” as those terms are generally understood. The reason of the exception was the hope of instilling into the minds of the specially excepted operatives a feeling of extra caution, by denying them the right of recovery which was expressly'granted other employes who might operate other machinery with full knowledge of its dangerous and defective condition. This provision of the constitution was based upon grounds of public policy and was designed for the protection of human life, so often solely dependent upon the care, caution, and skill of engineers and conductors. Railroad v. Guess, 74 Miss., 170 (21 South. Rep., 50). The very terms of the constitutional provision that knowledge of such defective or dangerous condition should constitute no defense, except as to certain named classes, necessarily conveys the intention of the law not to permit such knowledge to defeat recovery by others. We cannot assent to the contention that a section foreman in charge of a hand car is a conductor, within the meaning intended to be conveyed by the constitution.
The sole question remaining for consideration and determination is whether, under the facts, the appellee was guilty of such reckless negligence as should have prevented his recovery as a matter of law and authorized' the court to sustain the motion of appellant to exclude the testimony in his behalf. The defense predicated solely of the knowledge by the employe of the defect
The judgment is affirmed.
Concurrence Opinion
delivered the following specially concurring opinion:
I concur in the result reached, but not in all the reasoning of the opinion. I think the true doctrine as to the effect of sec. 193 of the constitution upon the defense of contributory negligence is very clearly set forth in Buckner v. Railroad, 72 Miss., 878 (18 South. Rep., 449), and I adhere to that statement as an exact one. I do not think the power of the court, in a proper case, to peremptorily charge for defendant on the ground of contributory negligence at all affected by said sec. 193.