Opinion
No. 33160.
October 10, 1938. Suggestion of Error Overruled November 7, 1938.
1. MASTER AND SERVANT.
In suit against railroad under Federal Employers' Liability Act for injuries to switchman who was struck by car "kicked" down "scrap-bin" track contrary to previous arrangement, whether engine foreman knew, or should have known, that switchman was in a position of peril, after having temporarily left work to answer call of nature, was for jury (Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59).
2. MASTER AND SERVANT.
Where foreman of switching crew had given switchman a "tab" showing that all standing cars were to be switched to specified tracks other than the "scrap-bin" track, switchman had the right to assume that the "scrap-bin" track was a safe place, and did not, by standing there, assume the risk of being struck by a car switched thereon (Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59).
3. MASTER AND SERVANT.
Under Federal Employers' Liability Act, one who knew, or by the exercise of reasonable care should have known, of a danger is negligent in not avoiding it, if he could have done so by the exercise of reasonable care (Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59).
4. NEGLIGENCE.
The rule that a custom must be well established and uniform in order to charge a person with knowledge of its effects is applicable only where a party is sought to be held to have contracted with reference to a custom, and does not apply in negligence cases.
5. MASTER AND SERVANT.
In action under Federal Employers' Liability Act against railroad for injuries to switchman who was struck by car while on "scrap-bin" track answering a call of nature, proof that workmen resorted to "scrap-bin" track for that purpose with sufficient frequency to cause engine foreman to have good reason to believe that switchman had gone there was sufficient to charge engine foreman with knowledge of switchman's presence, as against contention that custom must have been well established and uniform (Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59).
APPEAL from the circuit court of Lauderdale county; HON. A.G. BUSBY, Judge.
Bozeman, Cameron Bozeman, of Meridian, J. Blanc Monroe, of New Orleans, La., and Sidney S. Alderman, of Washington, D.C., for appellant.
The case is controlled by the Federal Employers' Liability Act, and the common law of negligence as defined and applied by the federal courts.
Favre v. L. N.R. Co., 178 So. 327; Y. M.V.R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817; N.O. N.E.R. Co. v. Penton, 135 Miss. 571, 100 So. 521; M. O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; N.O.G.N.R. Co. v. Branton, 167 Miss. 52, 146 So. 870; Employers' Liability Cases, 223 U.S. 1, 56 L.Ed. 327; N.O. N.E. v. Scarlet, 249 U.S. 528, 63 L.Ed. 572; Northwestern Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462.
Negligence, as recognized in federal decisions, is the basis of the action, and the burden is on the plaintiff to show such negligence by tangible and satisfactory testimony, unaided by surmise or speculation; mere scintilla is not enough.
Favre v. L. N.R. Co., 178 So. 327; Y. M.V.R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817; N.O. N.E.R. Co. v. Penton, 135 Miss. 571, 100 So. 521; M. O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; N.O.G.N.R. Co. v. Branton, 167 Miss. 52, 146 So. 870; Employers' Liability Cases, 223 U.S. 1, 56 L.Ed. 327; N.O. N.E. v. Scarlet, 249 U.S. 528, 63 L.Ed. 572; Northwestern Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462; Patton v. T. P.R.R. Co., 179 U.S. 658, 58 L.Ed. 361; C.M. St. P. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 104; A.T. S.F.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; A.T. S.F.R.R. Co. v. Ambrose, 280 U.S. 486, 74 L.Ed. 562; A.T. S.F.R. Co. v. Saxon, 284 U.S. 458, 76 L.Ed. 397; C.G. W.R. Co. v. Rambo, 298 U.S. 99, 80 L.Ed. 1066; Universal Co. v. Taylor, 178 Miss. 143, 172 So. 756, 174 Miss. 358, 164 So. 3; Y. M.V.R. Co. v. Lamensdorf, 178 So. 80; Small Co. v. Lambourn, 267 U.S. 248, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720.
Plaintiff below failed to show that any member of the switching crew had knowledge of his position of peril, and, without such knowledge, "negligence," as recognized in the federal courts cannot be implied.
G.M. N.R. Co. v. Collins, 151 Miss. 240, 117 So. 593; Aerfetz v. Humphreys, 145 U.S. 418, 36 L.Ed. 758; G.M. N.R. Co. v. Wells, 276 U.S. 455, 72 L.Ed. 370; T.S. W.R. Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; A.T. S.F.R. Co. v. Wyer, 8 F.2d 30; Penn R. Co. v. Lutton, 29 F.2d 689; N. W.R. Co. v. Collingsworth, 32 F.2d 561; Carfello v. D. L.R.R. Co., 54 F.2d 475; Peterson v. L. Ry. C. Co., 9 La. 714, 119 So. 759.
This accident happened in a switching yard, where conditions are constantly shifting, and where members of crews must look out for themselves, and plaintiff, an experienced switchman, assumed the risk of his injury.
Jackson v. So. Ry. Co., 241 U.S. 229, 60 L.Ed. 970; Boldt v. Penn. R. Co., 245 U.S. 441, 62 L.Ed. 385; C. O. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; C. O. v. Mihas, 280 U.S. 102, 74 L.Ed. 207; Gilmer v. Y. M.V.R. Co., 4 F.2d 963; Flannery v. New York R. Co., 29 F.2d 18; Reynolds v. N YR. Co., 42 F.2d 164; N. W.R. Co. v. Kratzer, 37 Fed. 2d 522; Penn. R. Co. v. Bourke, 61 F.2d 719; G.T.R. Co. v. Reid, 42 F.2d 403; Jackson v. C.M. P.R. Co., 66 F.2d 688; Thompson v. Downey, 78 F.2d 487; McClellan v. Penn. R. Co., 62 F.2d 61; Swinney v. Sou. Ry. Co., 89 F.2d 437; Farve v. L. N.R.R. Co., 178 So. 327.
The customs and practices relied on by plaintiff were not shown with sufficient certainty to satisfy the rule applied in federal courts.
McClellan v. Penn. R. Co., 62 F.2d 61; C.M. St. P. v. Lindeman, 143 Fed. 946.
Duty to line the switch (failure of performance of which caused the damage) rested, primarily, on plaintiff, and, in any event, only secondarily on other members of crew, and plaintiff's negligence bars recovery.
G.N.R. Co. v. Wiles, 240 U.S. 444; Frese v. C.B. Q.R. Co., 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; U.V.R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Cain v. R.R. Co., 75 F.2d 103; L. N.R. Co. v. Davis, 75 F.2d 849.
The "negligence" on which plaintiff sought to rely in the court below was not defined in the instructions given plaintiff.
Hines v. McCullers, 121 Miss. 666, 83 So. 734.
There is fatal variance between the case as set out in the declaration and that developed by the evidence.
Chism v. Alcorn, 71 Miss. 506, 15 So. 73; Sou. Ry. Co. v. Montgomery, 46 F.2d 990.
This court has, in a series of recent decisions, planted itself squarely on the proposition that testimony must comport with human experience, and must satisfy the rules of reason, if it is to form the basis of a jury verdict.
C. G. v. Coleman, 172 Miss. 514, 160 So. 277; Universal Co. v. Taylor, 174 Miss. 358, 164 So. 3; Y. M. V.R.R. Co. v. Lamensdorf, 178 So. 80; Y. M.V.R.R. Co. v. Skaggs, 179 So. 275; Teche Lines v. Bounds, 179 So. 747.
Circumstantial evidence must exclude the possibility of other inferences than that sought to be drawn therefrom, before it can be made the basis of a jury issue, when it is contradicted by the positive testimony of a witness. Cunningham positively stated that he did not see Benson's signal and did not acknowledge it. That statement is challenged, if at all, only by two movements Benson claims to have seen Cunningham make — one with his head and the other with his hand. Cunningham's testimony, therefore, stands unchallenged, save for the inference plaintiff seeks to draw from the two motions he claims he saw Cunningham make. In reality, therefore, this positive testimony is sought to be contradicted only by these circumstances and the inferences fairly to be drawn therefrom.
Penn. R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819; Mutual Life Ins. Co. v. Zimmerman, 75 F.2d 758; A.T. S.F. Co. v. Toops, 281 U.S. 351; N.Y.C.R. Co. v. Ambrose, 280 U.S. 486; C.M. St. P.R. Co. v. Coogan, 271 U.S. 472; Patton v. T.P. Ry. Co., 179 U.S. 658.
How can it possibly be argued that the plaintiff has met the burden assumed in his brief of showing that this small space between scrap bin and the track was used solely and exclusively for toilet purposes, and that no other places were so used. Both our adversaries and ourselves have recognized in the briefs, and throughout, that it is not sufficient to show that this spot was one of the spots so used, but the evidence must go further and show that it was the sole and only spot. Plaintiff bottoms his case on the proposition that the dedication of this spot for toilet purposes was so exclusive, so universal, so well known and so entirely beyond controversy that every single man in that portion of the yards was charged with notice that if any man departed from duty for such purposes, he had gone certainly to that spot. On no other basis has plaintiff attempted to charge Cunningham with knowledge that plaintiff went to that very spot when he left his post of duty.
The real fact is that Benson converted a perfectly safe place into an unsafe place by the method of use to which he put it. This court has recently held that such a course of conduct will not support a verdict for damages.
Farve v. L. N., 178 So. 327.
Reily Parker, of Meridian, for appellee.
The appellant's contention being that there was no duty of care until the engine foreman knew that the plaintiff was in a position of danger, and that it was error to instruct the jury that there could be liability based upon that knowledge of danger that could and would have been acquired by the exercise of reasonable care; and it is the contention of the appellee that the duty of care attaches when the operator knew or should have known that the plaintiff was in a position of danger, and we do not think that there is any conflict in the authorities in announcing this principle of law.
G.M. N.R.R. Co. v. Wells, 72 L.Ed. 370; N.O. N.E.R.R. Co. v. James, 128 So. 766; G.M. N.R.R. Co. v. Collins, 117 So. 593; Penn. Ry. Co. v. Lutton, 29 F.2d 689.
Liability may be properly based upon the negligence of the engine foreman when he knew or should have known of plaintiff's position of danger
Newton v. Homochitto Lbr. Co., 138 So. 564; St. L. S.F. Ry. v. Bridges, 125 So. 423; I.C.R.R. Co. v. Ray, 148 So. 233; N.O. N.E.R.R. Co. v. James, 128 So. 766.
We contend that the cases above referred to show that the true and correct rule was applied in the case at bar. These cases so state the rule to be, and when the facts have been stated in the case, such facts show the application of such rule. When members of the same crew, working together in the same place, are engaged in such work in the usual and customary way, and one of the parties, while so engaged, goes to the usual and customary place, and notifies the other employees that he is then going to such usual place, to hold that by so doing he was entitled to no measure of care, except that extended to trespassers, — that is, that the employees engaged in such work may ignore his position of peril until they actually know of such peril, is inconsistent with every rule of master and servant law. The appellant seems to find comfort in asserting that the rule applied in the trial of this case would require the engine foreman to follow the plaintiff about the yard to see and know when he was in a safe place and when he was in an unsafe place, when no feature of the testimony and no part of the instructions granted have any such meaning. The instruction granted the plaintiff required that the jury find that a signal was given which informed the engine foreman where the plaintiff was going, and that the engine foreman saw and understood this signal, and that the plaintiff went to the usual place where the thing to be done was customarily done, and that after the jury had found such facts to be true, then it became and was the duty of the engine foreman to guard against such dangers as the engine foreman knew or could and would have known by the exercise of ordinary care. The cases cited by the appellant in which there was found to be no liability serve to show the proper application of this rule.
Peterson v. La. Ry. Nav. Co., 119 So. 759; C. O.R.R. Co. v. Mihas, 74 L.Ed. 207; A.T. S.F. Ry. v. Toops, 74 L.Ed. 896; C.. O R.R. Co. v. Nixon, 70 L.Ed. 914; Aerkfitz v. Humphreys, 36 L.Ed. 758.
In none of the cases cited by appellant is there found a statement of the law contrary to the law applied in this case by the court below; and no case is cited where the facts are similar to the facts in the case at bar where there was no liability. In all of the cases like the case at bar, the defendant was held liable when it knew or should have known of the danger.
No complaint is made about the "scrap bin" being placed so near the tracks or the cars; and no complaint is made about any usual method of work or any unusual method known to the plaintiff. The complaint made here is an unusual and improper and negligent movement of cars that was not known to the plaintiff, but was in violation of the agreed and proper movement of such cars. The fact that the plaintiff was in a place of danger is only incidental to the inadequate preparation of toilets for the use of the men, but the dangers connected with the use thereof was due to the negligent operation of the cars. This is not a case where the injury was due to inadequate space for safety in the usual and normal work in and about such place, or work that was not usual and normal, but which the plaintiff knew of and appreciated; and for that reason, the assumption of risk doctrine does not apply.
N.O.G.N.R. Co. v. Branton, 146 So. 870; Toledo St. L. W.R.R. Co. v. Allen, 72 L.Ed. 513; T. P. Ry. Co. v. Behymer, 47 L.Ed. 905.
Argued orally by Ben Cameron, for appellant, and by Marion W. Reily, for appellee.
This is a suit brought under the Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59, for damages sustained by the appellee on account of a personal injury sustained by him, when he lost his leg, while employed as a switchman in the railroad yards of the appellant at Meridian, Mississippi. The right of recovery is based on the alleged negligence of the engine foreman of the switching crew who caused a box car to be "kicked" onto the wrong switch track of the yards at a time when the said foreman is alleged to have known, or by the exercise of reasonable care should have known, that the plaintiff was likely to be injured or killed by such negligent operation. Plaintiff obtained judgment for the sum of $17,500, and the defendant railroad company appeals.
The principal ground for reversal urged here is the refusal of the court below to grant a peremptory instruction in favor of the defendant; and it is therefore necessary to a proper understanding and decision of the legal question involved that the facts relied on to sustain the judgment shall be substantially set forth herein.
At the time of the accident, the switching crew, other than the engineer and fireman, was composed of the engine foreman, Cunningham, to signal the engineer and generally superintend the switching movement, the switchman, Colston, to follow near the cut cars so as to cut them loose when they were to be "kicked" onto the tracks of their respective destinations, and the plaintiff, Benson, known as the "fieldman" and whose duty it was to throw or line up the switches in the field which comprised an intricate and extensive system or network of tracks in the switching yard. Before undertaking to place any of the cars onto particular tracks on the occasion complained of, the plaintiff, in company with the engine foreman, made a "tab" or written memorandum of the switch track destination of each of the fifteen cars that were to be placed, as also shown by the markings on each car, and this "tab" was retained by the plaintiff, showing that the first car was to go into track Number 5, the second into track Number 7, the third into track Number 2, the fourth and fifth into track Number 7, the sixth into track Number 5, and the seventh (which was marked as an "M N" car) to go into "New Yard" track Number 1. The plaintiff had performed his duty of throwing or lining up each of the switches in the field while the above-mentioned cars were being "kicked" to their respective destinations up to the time that the second switching movement was to be made onto track Number 5. There, he was missed from his post of duty by the other switchman, Colston, who found it necessary to throw and line up this switch Number 5 in plaintiff's absence, and at a time when Colston was in plain view of the engine foreman, Cunningham. Plaintiff testified that before leaving his post of duty he signaled the engine foreman, as it was his right to do, and by a sign well understood among railroad men, for permission to be excused for the purpose of answering a call of nature; that the engine foreman answered the signal giving his consent; that plaintiff left his work and went to a nearby place between a standing box car on what was known as the "scrap-bin" track and the "scrap-bin," which was an uncovered platform about 30 feet long and 18 feet wide on which scrap iron, et cetera, was placed for shipment; that this was the usual and customary place where many of the men went on such a mission when working in that part of the yards, there being no other convenient and suitable place for use at that time; that the engine foreman knew of such practice of the men in that regard; that the place between this standing box-car and the "scrap-bin" was only a space of 19 inches where the men placed themselves to be concealed from public view on one side by the box-car and on the other by the "scrap-bin;" that while he was so situated the engine foreman, after "kicking" a car into track Number 5 in the plaintiff's absence as aforesaid, negligently threw the "M N" car into the "scrap-bin" switch and caused it to "kick" into the standing cars on the "scrap-bin" track, between which and the "scrap-bin" he was situated, causing a portion of his leg to be cut off; that it was the duty of the engine foreman to have seen to it, in the absence of plaintiff from his post of duty, that the switches were properly lined up to throw the said "M N" car into New Yard track Number 1, where it had been designated to go under the mutual understanding had between said engine foreman and the plaintiff immediately prior thereto; that this car could not have possibly gone into the wrong track if this duty of the engine foreman had been performed; that it was the duty of the engine foreman in each instance, before causing a car to be "kicked" into any of the tracks, to await a signal from the "field-man," showing that the switch had been properly thrown or lined up for the particular switching movement to be made, or to otherwise assure himself of such fact; and that under the general practice followed, the crew worked "short-handed" in the absence of the "field-man," when another member of the crew would perform his duties until his return.
We are of the opinion that the testimony, although conflicting in many material respects, was sufficient to make an issue for the jury on each of the foregoing propositions; and that there was sufficient evidence on which to submit to the jury the question of whether or not the engine foreman knew, or by the exercise of reasonable care should have known, that the plaintiff was in a position of peril and would likely be injured by the "kicking" of a car down the "scrap-bin" track in violation of the pre-arrangement and understanding that it should go into New Yard track Number 1; that since there was no car in the entire cut of cars destined to go into the "scrap-bin" track the plaintiff had the right to assume that he was in a safe place, and did not assume the risk or danger of a car being diverted therein, either as a known or obvious danger, or as one of the ordinary risks or dangers incident to his employment.
But, it is urged on behalf of the appellant, that there can be no liability in this case unless the engine foreman knew that the plaintiff was so situated as to be in a position or peril and likely to be injured by the act complained of; and that it was not sufficient to establish liability for the proof to merely show that the engine foreman should have known of the danger by the exercise of reasonable care. Numerous decisions are cited to support this contention as to the rule in cases governed by the Federal Employers' Liability Act. However, we are of the opinion that the cases relied upon are distinguishable from the case at bar in that the employee sought to be charged with negligence in those cases was not shown to have knowledge of any facts which would have enabled him, by the exercise of reasonable care, to anticipate that the injured employee was in a position of peril, and consequently, under such circumstances, it was held necessary for him to have known of the danger in order to have been guilty of negligence. We think that the correct rule applicable to the present case is announced in the following cases, which hold if the person charged with negligence knew, or by the exercise of reasonable care should have known, of the danger he is negligent in not avoiding it, if he could have done so by the exercise of reasonable care: New Orleans N.E.R.R. Co. v. James, 157 Miss. 607, 128 So. 766; Pennsylvania Ry. Co. v. Lutton, 6 Cir., 29 F.2d 689; Gulf, M. N.R. Co. v. Collins, 151 Miss. 240, 117 So. 593; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Chesapeake O.R.R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207. These and many other decisions, both state and federal, which have been called to our attention, recognize this to be the test of liability.
It is next insisted that the custom of the men to go to the particular place where the plaintiff was situated on such a mission must have been well established and uniform in order to charge the engine foreman with knowledge that the plaintiff had gone there. This rule, however, applies only when a party is sought to be held to have contracted with reference to a custom, and does not apply in negligence cases. It was sufficient to show, as was done in this case, that the men resorted to this particular place with sufficient frequency to cause the engine foreman, with knowledge of such practice, to have good reason to believe that he had gone to that place. It was the only suitable and convenient place within a reasonable distance for him to go on that occasion, on account of the toilets located some distance away having become frozen and out of order a few days prior thereto. It is true that he could have gone under the "scrap-bin," the floor of which was less than four feet from the ground, but it would have still been necessary to go in and out through the space of nineteen inches between the "scrap-bin" and the box car, and to be in a standing position there at least while adjusting his clothes. This fact, if found by the jury to have been known to the engine foreman under all of the circumstances testified to, was sufficient to render him guilty of negligence in "kicking" the car to that place. It is true, as announced in the authorities cited by appellant, that a switchman is required to look out for his own safety in the yards, and that he assumes the risk of cars being switched to and fro along the tracks where the switching movement is being conducted, but he does not assume the risk, nor is he required to anticipate, that a car will be switched into a different track than the one on which he has been assured it would be placed. The engine foreman admitted, in effect, that he knew it would be dangerous to "kick" the car down there if he had known, or had good reason to believe, that the plaintiff had gone to that particular place.
Under all the circumstances testified to, we think that the question was one for the jury as to whether the injury was caused by negligence of the defendant within the rule correctly announced by the instructions; and no errors appear in the record such as would require a reversal of the judgment.
Affirmed.