84 Miss. 125 | Miss. | 1904
delivered the opinion of the court.
We think the question of contributory negligence in this case was properly left to the jury, and has by the jury been properly settled. The evidence shows a case remarkable for the extent and variety of negligence on the part of the defendant railroad company. We have given the entire record the most careful consideration, and, unless the case is one in which no recovery at all is warranted under any declaration possible to be framed, this judgment must be affirmed. Perhaps the most earnest insistence of learned counsel for appellant at this bar is upon grounds not presented at all in the court below.
We may clear the way to decision by saying at once that, in so far as the declaration in this case seeks to recover under chapter 66, p. 84, of the laws of 1898, or chapter 87, p. 97, of the acts of 1896, it is not maintainable, because those acts have been declared unconstitutional in Ballard v. Miss. Cotton Oil Co., 81 Miss., 507 (34 So Rep., 533; 62 L. R. A., 407). Counsel for the plaintiff below insists that he has a right of recovery on common-law grounds because of a defective track, the argument being that the obstruction of the track constituted a defective track within the meaning of the rule of law upon that .subject, and it is stated in aid of this view that while this track, with its peculiar construction — around a sharp curve and a high hill— might have been a safe track when Vicksburg was a small place, it cannot be held to be so now, in view of the vast advance
It is next insisted by counsel for appellee that plaintiff is entitled to recover under either of two grounds: First, on the ground that the injury was directly due to the negligence of the yardmaster, a superior agent of the defendant corporation, under section 193 of the constitution; and, second, that said negligence of said superior agent or officer, and of the engineer Dart, furnishes a cause of action to the deceased employe, without reference to section 193 of the constitution, on the common-law ground that this yardmaster and engineer were manifestly incompetent employes, and not selected with due care; and that the negligence of the said yardmaster exercising the powers be exercised, under the rules of the corporation in evidence in this ease, in sending out a green engineer, such as Dart was plainly shown to be, and an engine overloaded with a heavy train of cars, thirty-one in number, on a steep up-grade, and in being without a watch upon such a vital occasion as this, in sending out a switch engine without a proper headlight, and giving “the high ball signal” to the switch engineer to go, in the direction of a very rapidly approaching train, around a curve, as rapidly as possible, at a time when the passenger train was practically due, indubitably stamped him, the said yardmaster, as being an incompetent and unfit employe to be intrusted with such powers, and fixed upon the corporation itself inescapable negligence in intrusting such an employe with so important a post. And it is said that this last cause of action is properly brought by the widow on the common-law doctrine as to the right, and under section 2, cb. 65, p. 83, Acts 1898, as to the remedy, as held in
We will deal with this second cause of action based on the common-law principle first; and, as to this, learned counsel for appellant conceded the soundness of the general principle contended for by appllee; that is to say, that such cause of action is maintainable by the widow under said section 2 of chapter 65, p. 83, of the acts of 1898. But they say that the declaration here does not state this cause of action at all, but is based entirely on “the intervening negligence of fellow-servants.” We think learned counsel for appellant mistake the scope of the declaration and the effect of the testimony in this case. We are clearly of the opinion that the testimony in this cause makes out a clear liability on the part of the defendant company on the common-law ground just stated. The cause of action on this ground is abundantly made out by the testimony. In all the extreme applications of the fellow-servant doctrine in this state in past adjudications, one thing was yet always consistently adhered to, to wit, that the failure to select and furnish fit and competent employes was the failure of the master himself to discharge a personal duty which he owed his employes, and which he could not delegate to another; and, of course", was such negligence of the master himself as entitled the injured party to recover therefor. This negligence is established in this case beyond, controversy. The only defense, therefore, that the appellant can interpose along this line is not that the cause is not proven, but that the declaration did not specifically count on this ground; in other words, we must deal with a thoroughly established cause of liability on this ground on the proof, and then determine whether this objection on the ground of improper pleading can be made in this court for the first time.
We here set out the material parts of the declaration in its first and second counts, which are as follows:
“Bor that whereas heretofore, to wit, on the 6th day of
“Plaintiff further avers that said collision occurred at a point where the track of the defendant company runs close to the edge of an embankment from sixteen to twenty feet high, and said Schraag, by most heroic efforts, managed to get his train in check, and to hold the same on the track, and thus save the lives of his passengers and the property of the defendant company then in his charge, though it was impossible for him to do this and save his own life after he first- saw that the track to which he was entitled was obstructed by another engine and train of cars so negligently allowed by the defendant company to occupy • said track at the time he was entitled to' the same free from all obstructions.”
It is true that the declaration in the first count does not use the words “superior agent,” but it expressly says, which said engine “had been carelessly, recklessly, and negligently ordered out of the yards” by the agents and servants of said defendant company who were engaged in “another department of labor.” The declaration' expressly recites that Schraag’s train was due at the yards at 6:40 a. m. ; that the defendant had a freight yard, “in which yard the defendant company was in the habit of making up trains of cars to be sent out in its service, and doing such other things as were convenient and necessary to the operation of its businessand it further expressly avers that the switch engine No. 42, with a train of thirty freight cars, was so ordered out by the agent aforesaid, and the collision is directly charged to be due to this reckless ordering out of this
The declaration in the case did not specify this as the ground of recovery. There, just as here, no objection was taken to the declaration on this ground in the court below,
That case covers this precisely. This declaration cannot, under any reasonable construction, be said to show one cause of action, and the evidence to support another and different cause of action. The declaration does, though defectively, state as one of the grounds of recovery the negligence of the defendant company itself; nay, more, it specified that that negligence consisted in ordering out this switch engine recklessly, carelessly, and negligently, on the track, at the time when the passenger train was due. This ordering out was made by the superior agent — some one having the right to order — and this agent was manifestly incompetent. It is too late now to object, on the single ground to which appellant must be confined, that, as a matter of pleading, the declaration did not at all state this ground of action; too late for two reasons: First, because we-
The record shows that, when the rules of the company wqre introduced to show that those rules had been violated by the defendant in a great variety of instances, the defendant “admitted, by its counsel, that rules 92, 99 and 99c were all violated by the defendant, and that the defendant was guilty of negligence.” It added to this admission its own request for the instruction No. 8, above set out. ' The case, therefore, is not only one in which no exception was taken in any way to the pleading in the court below, and in which no objection was made on the ground of variance in the court below, but one in which,
It is suggested in argument that appellant did raise the point in the court below by asking for a peremptory instruction. But asking for a peremptory instruction is entirely too perfunctory a mode of making so specific an objection. It was too general an objection. The court below doubtless never dreamed that this request for a peremptory instruction was meant to raise the point here pressed.
It is said, again, that the decision contravenes the Ballard case. It is in perfect harmony with the Ballard case. We held in the Ballard case that the plaintiff knew that the ladder was defective, and hence could not recover at common law, and so must recover, if at all, under chapter 66, p. 84, of the laws of 1898, making such knowledge no defense. But we held that said act was unconstitutional. Here we hold that this plaintiff can recover, not under the act of 1898, but under the common law, on the ground of the employment, without due care, by the company of incompetent employes, Hart and Earp, engineer and yardmaster. No common-law ground was involved in the Ballard case. Nothing but a common-law liability is here involved.
It is said, again, that our view contravenes t-he decision in the Bussey case. On the contrary, this decision reposes on that very case, wherein we expressly said (79 Miss., 609, 610; 31 So. Rep., 212) : “It is said that chapter 65 has no relation to suits by employes at all — not even where the employe sues on the ground of negligence of the master alone; and the court be
It is said there really is no variance, and that, if that objection had been made, it would have been shown that the evidence corresponded with the first count in the declaration. We think the variance is perfectly manifest between the testimony and both counts. The variance is in this: that, while the second count proceeds on a general charge of negligence, there is no specific allegation of the precise negligence of the company in furnishing incompetent employes. It is, in its nature and in its extent, the same sort of variance that was shown in the Price case. But it was nothing but a variance, and, to have been availed of, must have been taken advantage of in the court below. The very furthest reach of the point pressed here would simply be to reverse and remand the cause for amendment of the declaration. But it surely must be too plain for discussion that if the defect in the pleading be amendable, it must, perforce, be cured, in case of failure to object below, by sections 718 and 746 of the code of 1892, as construed in the Price case, supra.
We have not ourselves set out in detail the evidence, but the reporter will do that — especially the testimony of the witness, Schmidt, and the testimony showing the experiments demonstrating the inability of Schraag to have stopped his engine in time to prevent the collision after he saw the switch engine. We only add that the testimony shows that the railroad company
On this ground, therefore, the judgment is affirmed.