Yazoo & Mississippi Valley Railroad v. Slaughter

45 So. 873 | Miss. | 1908

Wiiiteield, C. T.,

delivered the opinion of the court.

The determining question in this cause is whether the unfortunate little boy who lost his life fell into the tank through the rotten roof at the time when he was engaged in and about his master’s business, or at a time wholly disconnected from any engagement about bis master’s business, when be was engaged solely in amusing himself on the roof of the tank. The crucial question is when, exactly, did he fall through this roof to his death, and what was he engaged in doing at that time ? On the one hand, it may be said to be clear that he was an employe of the appellant company, on the facts shown in this record; and on the testimony of Thomas Tillman it is also clear that he went up on top of this roof for the purpose of adjusting the float and the lever, and that he was engaged in so adjusting this float and this lever when seen by said Thomas Tillman; but Tillman fails utterly to show when he saw him, and it may be said that there is a total failure on the part of the plaintiffs appellees here, to show anywhere in this record at what time Thomas Slaughter, the boy, went up on top of this roof, or at what time he fell through this roof, or whether he was engaged in and about his master’s business, or in his own personal amusement only, at the time he so fell through the roof.

It is for the plaintiffs, if they would hold the defendant liable, to show that the boy came to his death by falling through this roof while engaged in and about his master’s business. It will not do, on the one hand, for the company, on this record, to contend that he was not an employe, or that the father was guilty of any contributory negligence which would bar his suit, or that it was not the duty of the company to have repaired, and kept in repair, its roof over the tank; and no more will it do, on the to her hand, for the plaintiffs to contend, on this very unsatisfactory record, that any clear case of liability is shown here, to wit, that the deceased fell through the roof to his death at a time when he was engaged about his master’s business. The testimony in the ease leaves it entirely uncertain when he so fell through, and what he was doing at that time, and yet these are the crucial inquiries in the case.

The court instructed the jury for the defendant in instructions Nos. 2, 3, and 5 as follows:

“(2) The court instructs the jury for the defendant that if they believe from the evidence that the said Thomas H. A. Slaughter, at the time he met his death, was upon the roof of the tank for the purpose of play or amusement, or- of tossing stones at passers-by, or for any other purpose except to arrange^ the float or lever, then they shall find for the defendant.”

“(3) The court instructs the jury for the defendant that if they believe from the evidence that the said Thomas H. A.. Slaughter remained on top of said tank for the purpose of play or amusement, or of tossing stones a.t passers-by, or for any other purpose not connected with the lever or float, they shall find for the defendant, notwithstanding the fact that they may believe that he went upon said tank in the first place in the discharge of his duty.”

“(5) The court instructs the jury for the defendant that, if they believe from the evidence that that part of the roof of the tank through which the said Thomas H. A. Slaughter fell was not a part of .the roof over which he would have to pass in going to or from the ladder to the lever or manhole while-engaged in his duties with reference to said lever or float by the nearest convenient route, then they shall find for the defendant.”

It will be seen that these three instructions, grouped, told the jury that if they believed from the evidence that Thomas Slaughter at the time he met his death was upon the roof for the purpose of playing, etc., or for any other purpose except to arrange the float and lever, then they should find for the defendant, notwithstanding that they might believe he went upon the tank in the first place in the discharge of his duty; and, further, that if they believed from the evidence that that part of the roof of the tank through which the said Thomas Slaughter fell was not a part of the roof over which he would have to pass, in going to or from the ladder to the lever or manhole while engaged in his duties with reference to said lever and float by the nearest convenient route, they should find for the defendant.

The court clearly had the just distinction in its mind, and sought properly to direct the jury to solve the case by solving the question of whether, at the time he met his death, he did so in the discharge of his duty to his master, or whilst engaged in play and sport on his own account. There was testimony for the defendant that the point of the roof through which he fell was some five feet from the path he ought to have pursued in going to the lever, if he went to the lever; and there was abundant testimony that he was dodging about on top of the roof, throwing stones at passers-by, during a j>art of the afternoon, engaged at this time, manifestly, in amusing himself on his own account in the pastime of throwing stones from the roof at different parties. TIow much of his time was thus spent, when he adjusted the lever and the float, or how long he was engaged in doing that which was his proper business, the testimony wholly fails to disclose. It discloses that he was on the roof from two to three hours. He would not be held, of course, to too nice a calculation about what line of travel he would pursue in going from the top' of the ladder to adjust the lever or the float, if only he can show that he pursued a path on the roof to reach and adjust the lever or the float, and fell in whilst he was so adjusting said lever or float — in other words, whilst engaged in and about his master’s business. We will not disturb a finding in his favor on any nice calculation as to whether within this radius of seven and one-half feet he fell through one part of the roof or the other. That is not the determining question. The question is: Was he, at the time he fell in, engaged in and about fixing this lever- or float ? Whether, whilst so engaged, he fell through one part of the roof or the other, is a mere accident of the situation, and not a determining factor.

If the evidence shall show, on a new trial, that he fell in through this roof whilst engaged in and about his master’s business, a recovery ought not to be disturbed because he fell through one part or the other of the roof; there being but the small radius of seven and one-half feet around which he could move. Substantial rights are not to be pared away by such infinitesimal calculations; but if the evidence shall show on a new trial that he fell through this small roof, in one place or another,, whilst engaged in his own independent pastime of throwing stones at passers-by, then there should be a peremptory instruction to find for the defendant, and it is to this question that the' testimony on the new trial should be addressed, carefully and completely, thát the cause may turn on its real point, and turn-rightly on a fully developed case, so that there may be such full light as will disclose the truth on this point.

Because the testimony fails to show that he was engaged in-his master’s business at the time he fell in, the judgment is reversed, and cause remanded.

jReversed and remanded*.