53 So. 687 | Miss. | 1910
Lead Opinion
delivered the opinion of the court.
Appellee, Woodruff, sued the appellant, the Yazoo & Mississippi Valley Eailroad Company, for personal injuries, and recovered a judgment for ten thousand dollars, from which judgment the railroad company prosecutes an appeal to this court. The material facts are as follows:
At the time of the injury Woodruff was an engineer on the Woodville branch of the Yazoo & Mississippi Valley Eailroad, running from Woodville, in this state to Slaughter, La. The injury complained of was caused by the explosion of a glass tube in the lubricator, which latter was a part of the engine, and attached to the rear end of the boiler, to the left of the engineer’s seat, and to the right of the fireman’s and consisted of four glass tubes, about four inches in length and three-eighths of an inch in diameter, one of which fed oil into the' right cylinder of the engine, one into the left, one into.the air pump, and the fourth indicated the amount of oil in the lubricator, and all were guarded against injury from explosion by a cover of spiral wire; spaces
The single question is (all other assignments of error having been withdrawn) whether the court below erred in refusing the peremptory instruction for the railroad company, which involves the question whether, taking all the testimony in the case, and every reasonable inference to be drawn therefrom, to be true, does it tend to establish liability on the part of the railroad company? Conceding that the engine which caused the injury was unsafe and dangerous, it is contended for the railroad company that, notwithstanding, there is no liability; that there was no issue of fact for the jury, because Woodruff’s own testimony, which is uncontradicted, shows that he knew „ of such defective condition of the engine, and voluntarily operated the same.
That part of section Í93 of the Constitution of 1890 bearing on this question is in this language: “Knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, of engines voluntarily operated by them.” Section 4056, Code 1906, contains a rescript of this clause to the Constitution, except there is interpolated, “or of the improper loading of cars,”
It is clear that this case stands as if the clause of section 193 of the Constitution under consideration had never been adopted; for engineers and conductors, by
It is contended for appellee that the defense of assumed risk was not presented in the court below, and therefore will not be entertained here. Plainly, the question was squarely presented by the testimony,, and the peremptory instruction, and instruction No. 9, to the effect that the jury should find for the defendant, if plaintiff knew of the defect and voluntarily operated the engine, asked on behalf of the defendant and refused by the court. And it is contended, further, that the defense of assumed risk is an affirmative one, and should ■ therefore have
It follows, from these views, that the court below erred in not giving the peremptory instruction asked on behalf of the railroad.
Reversed, and remanded.
Dissenting Opinion
(dissenting).
My conviction that this case should be affirmed is so strong that .1 feel compelled to dissent. The whole court agrees that the case made by appellee was one in which no peremptory instruction was proper, unless section 193 of the Constitution of 1890 4056 of the Code of 1906; ch. 194, p. 204, Laws 1908), has application. In my opinion section 193 of the Constitution is in no way involved in -this case, since it clearly appears that the defective appliance rendered the engine neither dangerous or unsafe. By section 193 of the Constitution, every employe of any railroad corporation — the engineer, conductor, brakeman, flagman- — all are given the same rights and remedies for injuries sustained by them from the act or omission of the corporation, or its employes, as is allowed by law to other persons not employes, etc., save in the single exception made as against engineers and conductors, which I shall now notice. Equality of right as against the railroad corporation is established as to all employes, except as to conductors and engineers voluntarily operating dangerous or unsafe cars or engines with knowledge; and this was not the case here. It is
Before an engineer or conductor can be denied the right under this section to recover for an injury so sustained by him, it must be shown that the defect made the cars or engine unsafe or dangerous. This is what section 193 plainly says. We must suppose that every word in the Constitution has some meaning, and that the words employéd to express the will of the convention were used advisedly. The section says that “knowledge by an employe injured of the defective or unsafe character or condition of any machinery,” etc., “shall be no defense,” etc., “except as to conductors or engineers in charge of dangerous or unsafe cars,” etc. Note that in the exception it does not say that an engineer or conductor shall not recover if they operate merely defective cars, but dangerous or unsafe cars; and this engine was neither, in so far as it stood as a menace to human life or limb. It is my judgment that, under section 193 of the Constitution, every employe stands in the same attitude towards the railroad company, as to his rights and