Opinion
No. 32511.
March 1, 1937.
1. MASTER AND SERVANT.
In action in state court under Federal Employers' Liability Act, rules of pleading, practice, and procedure of state control in so far as thereby no substantive right or defense arising under act is lessened or destroyed (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq; Code Miss. 1930, sec. 521).
2. PLEADING.
Statute which declares sufficient a declaration which contains sufficient matter of substance for court to proceed on merits requires that matter of substance should be that which is essentially required to be averred and shown under applicable law (Code 1930, sec. 521).
3. PLEADING.
Statute which declares sufficient a declaration which contains sufficient matter of substance for court to proceed on merits does not change rule that pleadings are to be taken strongest against pleader, and declaration is not to be aided by mere inferences to be drawn from its averments (Code 1930, sec. 521).
4. PLEADING.
Under statute which declares sufficient a declaration which contains sufficient matter of substance for court to proceed on merits, facts which are reasonably or necessarily implied from facts stated must on demurrer be considered as true, and when such facts, together with express averments, furnish sufficient matter of substance for court to proceed on merits, and meritorious case under applicable law is thus presented, demurrer is unavailing (Code 1930, sec. 521).
5. MASTER AND SERVANT.
Under common law, applicable to actions under Federal Employers' Liability Act, servant must exercise due care to protect himself against all ordinary and obvious dangers of his work for master who has furnished servant reasonably safe working place and appliances (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.).
6. MASTER AND SERVANT.
Under common law, applicable to actions under Federal Employers' Liability Act, so far as reasonably practicable, master must warn servant or erect guards or so control method of work as to obviate danger to servant whose work contains hazards against which servant cannot protect himself by exercise of due care (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.).
7. MASTER AND SERVANT.
Railroad held not excused from liability under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, by fact that railroad had no control over express trucks, since railroad could have refused to pull express cars to point where maneuvers of express trucks were made unless express company desisted from dangerous method of operation (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.).
8. NEGLIGENCE.
Where occurrence of intervening cause might reasonably have been anticipated, intervening cause will not interrupt connection between original cause and injury.
9. MASTER AND SERVANT.
Count of flagman's declaration against railroad under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, stated cause of action, where alleging that injury resulted from dangerous unloading methods pursued by railroad and express company together, as against contention that action of express company and its truck was independent intervening cause, since declaration showed case of concurrent negligence, as to which each of concurring tort feasors is liable (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.; Code Miss. 1930, sec. 521).
10. MASTER AND SERVANT.
Count of flagman's declaration against railroad under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, stated cause of action, as against contention that allegation that it was necessary for flagman to keep looking to rear during maneuvers in order to aid spotting of cars was manifestly untrue and that he could have looked out for himself, since matter was not one for judicial notice, but was for jury (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.; Code Miss. 1930, sec. 521).
11. MASTER AND SERVANT.
Count of flagman's declaration against railroad under Federal Employers' Liability Act for injuries flagman sustained when struck by express truck, engaged in allegedly dangerous maneuvers customarily pursued to speed unloading of express cars, stated cause of action, as against contention that declaration showed that flagman assumed risk, where declaration alleged that flagman had complained of danger and railroad's authorized agents had promised to discontinue dangerous features of maneuvers and that flagman relied on such promise on occasion of injury (Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.; Code Miss. 1930, sec. 521).
APPEAL from the circuit court of Harrison county.. HON.W.A. WHITE, Judge.
Carl Marshall and Mize, Thompson Mize, all of Gulfport, for appellant.
The Federal Employers' Liability Act will govern the principles of this case insofar as it has changed the common law, but except as it modifies the common law the case will be determined subject to common law principles. The declaration is in three counts, and if any one of the counts states a cause of action then the demurrer should have been overruled.
Thames v. Batson Hatten Lbr. Co., 143 Miss. 5, 108 So. 181.
The purpose of the Federal Employers' Liability Act was not to abridge, but to enlarge the liability of interstate carriers. The act abolishes the fellow servant rule, and abolishes the defense of contributory negligence as a complete bar. But the defense of assumption of risk is still available, except for a violation of the safety appliance act. The safety appliance act is not involved in this case. The applicable section of the statute is Section 51, Title 45, U.S.C.A. This act provides that every common carrier by railroad engaged in interstate commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, due to its negligence.
In the case of I.C.R.R. Co. v. Skaggs, 240 U.S. 66, 60 L.Ed. 528, it was held that recovery under the act was supported by evidence upon which it could be found that a fellow servant was negligent, and that thereby the injury complained of resulted, although the employee himself may have participated in the act.
In the case of Chicago-Rock Island Railroad Co. v. Wright, 239 U.S. 548, 60 L.Ed. 431, the court held that it was a question for the jury to determine as to the negligence of the company where it was shown that a switch engine was run on the main track through a deep and curved cut at such a rate of speed as to endanger the extra which the switching crew knew might be coming through the cut on the same track about the same time. The petition in that case alleged negligence on the part of the defendant to provide a suitable rule regulating the speed and movement of its switch engines through the cut.
In the case of K. M.R.R. Co. v. Kerse, 239 U.S. 576, 60 L.Ed. 448, it was held that it was actionable negligence for a company through its employees to conduct its switching operations upon a private switch obstructed in such a manner as to endanger the lives of brakemen upon its cars.
In the case of Southern Ry. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030, the court held that the rights and obligations under the employers' liability act depend upon those statutes and the applicable principles of common law as interpreted and applied in the federal courts.
In the case of Union Pacific Ry. Co. v. Huxoll, 245 U.S. 535, 62 L.Ed. 455, the court held that evidence tending to show that while the engineer of a backing switch engine which ran down another employee who was walking between the rails in a cloud of steam and smoke did not see the man struck, but was notified almost instantly, but continued to go for 135 feet after striking him, was sufficient to justify the submission of the case to the jury on the question of whether a defective power brake contributed in part to the death.
Rocco v. Lehigh Valley R.R. Co., 288 U.S. 275, 77 L.Ed. 743; Reed v. Director General of Railroads, 258 U.S. 92, 66 L.Ed. 480; Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838; Gila Valley G. M.R.R. Co. v. Hall, 232 U.S. 94, 58 L.Ed. 521; Chicago-Rock Island Ry. v. Ward, 252 U.S. 18, 64 L.Ed. 421; New York Central v. Carr, 238 U.S. 260, 59 L.Ed. 1298; Jamison v. Encarnacion, 281 U.S. 635, 74 L.Ed. 1082.
In the case of Alabama Great Southern R. Co. v. Williams, 37 So. 255, 140 Ala. 230, it was held that under the Employers' Liability Act, a defendant is liable where the plaintiff, while in a perilous position on the train, was seen by the engineer in charge, who knew of the plaintiff's danger, but made no effort to save him.
Choctaw Oklahoma Gulf Ry. v. McDade, 191 U.S. 64, 48 L.Ed. 96.
Analyzing the declaration in the light of this authority and in view of the authorities hereinbefore cited, it is apparent that a case of negligence is clearly stated in the declaration. The situation was a dangerous one, and one that required care on the part of the engineer and fireman. Reasonable care would have required the defendant company to cease the dangerous method of unloading the express cars. Plaintiff in this case was to the rear of the engine, looking backward at a group of telegraph poles to locate the spot where the car should be stopped. The declaration charges clearly that it was his duty under his employment to be in that position, and to have his back toward the fireman. It was the duty of the fireman to look at the plaintiff, and at the same time to observe the trucks of the express company which were to receive the cargo when unloaded, and to signal to the engineer when to stop, either for danger, or for the purpose of spotting the car. The express truck that struck the plaintiff was between the fireman and the plaintiff, and the fireman is bound to have seen the perilous position of the plaintiff if he had been in the exercise of reasonable care. So, in the first count of the declaration a clear case of liability is stated.
In the second count it is alleged that the engineer received the signal in time to have stopped the car, but that he negligently failed to do so. We cannot conceive of a clearer statement or charge of negligence against an employee than is charged in this count.
Under the third count, from the authorities above cited it is seen that the system of the railway company was dangerous, and was likely to cause the very injury that did happen to the plaintiff.
We submit, therefore, that a clear case of negligence is shown by all three counts of the declaration.
An intervening force which combines with the negligence of another in producing injury to a third person does not necessarily supersede the original act of negligence and become the sole proximate cause of harm produced thereby. It does not become such a case if it is a normal response to a situation created by the negligence of another, and the manner in which it is done is not extraordinarily negligent.
Superior Oil Co. v. Richmond, 159 So. 850, 172 Miss. 407; Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; 2 Restatement of Torts, sec. 447; Gow Co., Inc., v. Hunter, 168 So. 264; Columbus Greenville Ry. v. Lee, 115 So. 782; G. S.I.R.R. Co. v. Carlson, 102 So. 168; Oliver Bus Lines v. Skaggs, 164 So. 9; Thomas v. City of Lexington, 150 So. 816; Public Service Corp. v. Watts, 150 So. 192; Keith v. Y. M.V.R.R. Co., 151 So. 916; Russell v. Williams, 151 So. 372; Gulf Refining Co. v. Moody, 160 So. 559; Miss. Central Ry. Co. v. Roberts, 160 So. 604; Solomon v. Continental Baking Co., 160 So. 732; G. S.I.R.R. Co. v. Barnes, 94 Miss. 484; A. V. Ry. v. Davis, 69 Miss. 444, 13 So. 693; Cumberland Tel. Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824.
The plaintiff did not assume the risk.
Alabama Great Southern R.R. Co. v. Davis, 24 So. 862, 119 Ala. 572; Sloss-Sheffield Steel Iron Co. v. Triplett, 58 So. 109, 4 Ala. App. 323; Koofos v. Great Northern Ry., 170 N.W. 859, 41 N.D. 176; 39 C.J., sections 986, 992, 1009 and 1010; Chesapeake Ohio R. R. Co. v. deAtley, 241 U.S. 310, 60 L.Ed. 1016; Chesapeake Ohio R.R. Co. v. Profit, 241 U.S. 462, 60 L.Ed. 1102; Kanawha Michigan R.R. Co. v. Kerse, 239 U.S. 576, 60 L.Ed. 448; Southwestern Brewing Co. v. Schmidt, 226 U.S. 162, 57 L.Ed. 170; Chicago-Rock Island Ry. v. Ward, 252 U.S. 18, 64 L.Ed. 430; Reed v. Director General of Railroads, 258 U.S. 92, 66 L.Ed. 480; Seaboard Airline Ry. v. Horton, 239 U.S. 595, 60 L.Ed. 458.
Smith Johnston, of Mobile, Ala., for appellee.
The sole question before the court in this case is whether or not the declaration states a cause of action under the Federal Employers' Liability Act. It is our contention that there are not sufficient allegations of facts showing any duty owing to the plaintiff that was breached by the defendant, its agents or servants. A duty cannot be created merely by allegations of a lawyer in a declaration. Facts must be alleged from which a legal duty would arise. If duties could be created merely by alleging that a duty exists, then a cause of action could be stated against anybody for doing anything.
Whitten v. Nevada Power, Light Water Co., 132 Fed. 782; Howard v. McCarson, 215 Ala. 251.
We desire to call the court's attention at the outset to the fact that this declaration proceeds to allege that it was the duty of the defendant's fireman to do things which are not legal duties, and then alleges that this duty was breached. As we have said, a duty cannot be created in such manner. The duty must be one that arises by law from a certain state of facts, and the pleader must plead facts which show that a duty existed. It must then be alleged that there was negligence in the breach of the duty, or failure to perform the duty, as a proximate result of which the plaintiff was injured.
Southern Ry. v. Verelle, 57 F.2d 1008.
It is held that a switchman assumed the risk of being struck by a train on an adjacent track, or by another train operated in the same yard, even though the engine on the train which struck the plaintiff had an unusually large overhang.
Pennsylvania R. Co. v. Bourke, 61 F.2d 719.
A switchman who is injured by striking a semaphore cannot recover even though the semaphore was placed closer to the track than usual.
Kansas City Sou. Ry. v. Leslie, 283 U.S. 401.
A locomotive engineer cannot recover because he is struck by a mail crane, even though placed closer to the track than the plan provided.
Chesapeake Ohio Ry. v. Leitch, 276 U.S. 429.
In the foregoing cases the defendant had charge and control over the train or object which struck and injured the plaintiff, and therefore the cases were much stronger in favor of the plaintiff than the present case, wherein the defendant had no charge or control over the express trucks. Not a single authority has been cited by the appellant, although it is very evident that the appellant has made a very diligent search of all the cases, wherein the defendant was ever held liable for the negligent act of some third person in backing into a train and thereby injuring the flagman or other employee. It is not claimed in the present case that the defendant was guilty of any negligence in operating its train as it was, but the entire gist of the claim is that the defendant failed to prevent a third person, over whom the defendant had no control whatsoever, from doing something that would injure the plaintiff.
Assumption of risk still constitutes a good defense under the Federal Employers' Liability Act. However, the defense of assumption of risk does not come into play, and is not invoked unless there has been some negligent act on the part of the defendant, or some of its servants or employees. If there is no negligence on the part of the defendant, there is no liability whatsoever, and no necessity, therefore, to consider whether or not the plaintiff has been guilty of assumption of risk. Before it is necessary to even consider whether there has been assumption of risk, the plaintiff must show that some duty owing to him has been negligently breached by the defendant, or one of its servants.
A duty on the part of the railroad company to protect its employees from the driver of a truck on a public highway cannot be created by mere allegations in a declaration, as has been attempted in this case. The duty must arise from a legal obligation, and not from an allegation in the declaration, as is attempted by the plaintiff's attorney.
It very clearly appears from the allegations in the first count of the declaration that the proximate cause of the plaintiff's injury was the negligence of the driver of the express company's truck in backing into him, but he attempts to hold the railroad company by alleging that it was the duty of the fireman to protect him. In other words, the theory is that it was the duty of the fireman to look towards the rear of the train, and to discover any truck or automobile approaching in close proximity thereto, and then immediately cause the train to be stopped before the truck could have an opportunity to strike the plaintiff. This is a very novel and unusual duty alleged to have been placed upon the fireman. Legal obligations and duties cannot be created merely by allegations of legal conclusions in a declaration.
There is nothing to show that the fireman owed a duty to watch all the trucks of the express company so that he would have time to have the train stopped before the truck could back into the side of the train.
Fuller v. I.C.R.R. Co., 100 Miss. 705, 56 So. 783; Mobile Ohio R.R. v. Bryant, 159 Miss. 528, 132 So. 539; Perry v. Louisiana A. Ry., 142 So. 736, 144 So. 202.
The fireman had a right to assume that the express company's truck, backing slowly towards the train, would stop before jamming the plaintiff.
Count Two alleges the same general facts as Count One, and attempts to show liability on the part of the defendant because the engineer failed to hear or heed a signal given him by the fireman. There is no allegation that the engineer actually knew of the plaintiff being in danger, or that he heard the signal given by the fireman. No facts are alleged to show that there was any duty on the part of the engineer to obey the fireman's signal to stop. There is nothing alleged as to what or how the fireman signalled to the engineer. It alleges he signalled to the engineer to stop the locomotive, but it is not alleged that the engineer heard or saw the signal, and no facts are alleged to show he had the slightest idea the plaintiff was in a position of peril.
Both counts one and two show from the facts alleged that the plaintiff himself assumed the risk of being injured. Where the allegations of the declaration themselves show that the plaintiff was guilty of assumption of risk, no cause of action is stated, because there is no liability in such circumstances under the Federal Employers' Liability Act.
Toledo, St. L. Western Ry. v. Allen, 276 U.S. 165; Southern Pacific v. Berkshire, 254 U.S. 415; Grand Trunk Western Ry. v. Rud, 42 F.2d 403; Pennsylvania Ry. v. Bourke, 62 F.2d 718; Wheelock v. Freuwald, 66 F.2d 694.
After all the high sounding language is sifted, count three does not do anything more than allege that the plaintiff was injured by the negligence of the driver of the express company in backing too close to the side of the defendant's train.
It is respectfully submitted that if we treat all of the allegations in the declaration as true, the plaintiff, if he was injured, was injured as a result of the express company's truck being backed against him.
It is respectfully submitted that the demurrers to each count of the declaration were properly sustained.
Argued orally by Carl Marshall, for appellant, and by Harry H. Smith, for appellee.
Appellant brought an action in the circuit court of Harrison county against appellee for personal injuries sustained by appellant while an employee of appellee in interstate commerce, and the declaration was framed in the effort to state a cause of action under the Federal Employers' Liability Act, 45 U.S.C.A., section 51, et seq. A demurrer was interposed, which was sustained, and the cause dismissed.
It is well settled that when an action is instituted in a state court under said act, the rules of pleading, practice, and procedure of the state wherein the suit is brought control in so far as thereby no substantive right or defense arising under the act is lessened or destroyed. Thus our statute, section 521, Code 1930, comes into operation, which has enacted that if a declaration "contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient," provided, of course, the matter of substance mentioned in that section is that which is essentially required to be averred and shown under the applicable law, which, in this case, is the said federal act. There was no intention by this statute to change the rule that pleadings are to be taken strongest against the pleader, nor to aid a declaration by mere inferences to be drawn from its averments. Nevertheless, those facts which are reasonably or necessarily implied from the facts stated must on demurrer be considered as true; and when these, together with the express averments, furnish sufficient matter of substance for the court to proceed upon the merits, and a meritorious case under the applicable law is thus presented, a demurrer is unavailing.
Construing the declaration under the stated rule, we think the third count states a cause of action. The declaration alleges that the railroad company carried as a part of its interstate passenger trains one or more express cars, and that upon arrival of a passenger train at the southern or western terminus of the railroad in the city of New Orleans, the train would be stopped at the passenger station, and the express car or cars would be uncoupled from the passenger coaches, and the express car or cars would thence be drawn by the locomotive across Canal street, and spotted at a point which would leave the rear of the express car immediately beyond and clear of the west or south side of said street; that the express company had in its service a number of large motortrucks and that to accomplish the prompt delivery of articles transported by express, it had for some time been the custom and method pursued that the express trucks would be present at the point immediately west of Canal street when a passenger train arrived; and that while the express car or cars were being spotted at the point aforesaid, the express trucks would, at the same time, be maneuvering for position so that as soon as the express car or cars were spotted the articles of express could be at once loaded into the trucks.
That in order to spot the express car or cars at the place aforesaid it was required by the railroad that the flagman ride on the outside of the rear express car, and on the rear left side thereof, so that as soon as the rear end of said express car had crossed the said street and was in the proper position to be spotted or stopped, the flagman would signal the fireman, who was required to be on the lookout from his cab on the left side of the locomotive for the signal, and when the flagman's signal was given to the fireman, the latter would communicate it to the engineer. That in order for the flagman to see and to know when the rear end of the express car had reached the precise place when the car was to be stopped or spotted, it was necessary for the flagman to keep his eyes to the rear, or towards the opposite direction from that in which the locomotive and express cars were moving, and, therefore, that the flagman could not at the same time see the positions which the express trucks were occupying or were proceeding to occupy in their said maneuvers to place themselves in ready access to the doors of the express cars when the latter were spotted.
It was further alleged that the method of operation above outlined was an unreasonably dangerous method, in that the flagman in his exposed position was thereby liable to be struck by one of the assembled express trucks in their said maneuvers. That on the occasion in question appellant was the flagman in the employ of appellee, and was performing the duties on the rear outside of an express car in the manner as hereinabove mentioned, and was struck by an express truck in its maneuvers as aforesaid and thrown to the pavement, with the result that appellant suffered severe and permanent injuries. the declaration further averred that appellant had complained to the authorized agents or officers of appellee railroad company about said dangerous method of operation, and had pointed out to them the likelihood of injury to the flagmen by such a method, and that the said authorized agents had promised appellant that the features thereof which produced the said danger would be discontinued, and that appellant relied upon the promise and did not know on the occasion of his injury that the said promise had not been fulfilled.
Although taken from one of our own decisions, the following quotation is a succinct statement of the common law, applicable to actions under the Federal Liability Act and to the facts of the case here before us: "The general principle is that, where the master has used reasonable care to furnish a reasonably safe place to work, the character of the work considered, and like care to furnish reasonably safe appliances with which to work, the duty rests upon the servant to take care of himself as to all the ordinary and obvious dangers which arise in the progress of the work. Brown v. Corley [ 168 Miss. 778], 152 So. 61. The converse is equally true that, where the master places his servant at a place and in a character of work which exposes the servant to hazards against which the servant cannot, by the use of due care, protect himself and at the same time do his work, the master must then take reasonable care to warn the servant or to erect guards, if either of these are reasonably practicable, and, if not, the master must so order and control the method of work as to obviate the danger, so far as reasonably practicable." McLemore McArthur v. Rogers, 169 Miss. 650, 657, 658, 152 So. 883, 884, citing other cases.
The principal argument of appellee, as we construe it, is that it is not alleged that the railroad company had any control over the express company or over its express trucks or over the manner by which these trucks should be handled or maneuvered, and that the express company alone is liable, if there be any liability. We may concede for the sake of the discussion that the railroad company had no control over the trucks of the express company, nevertheless the railroad did have control over its own locomotives and employes and could have refused to operate its locomotives in pulling the express cars into this hazardous situation unless and until the express company desisted from the dangerous method of operation mentioned. In point upon this question is the case Kanawha M. Railroad Co. v. Kerse, 239 U.S. 576, 36 S.Ct. 174, 60 L.Ed. 448, where a brewing company owning a private switch had placed some pieces of timber across the switch track in such a position as to strike a brakeman whose duties required him to be on top of a box car, and who was unaware of the presence and position of the said pieces of timber, and whose attention at the moment was directed towards the conductor, thus causing him to fail to see the pieces of timber placed as aforesaid. The evidence disclosed that the railroad company knew of the danger, and while it did not erect the dangerous obstructions, nor own the switch track, it was held a question for the jury upon the reason, obviously as already stated, that the railroad company could have refused to put its train into this switch unless and until the obstruction, and the danger thereby created, was removed or remedied.
Something is also said about the action of the express company and its truck or trucks as being an independent intervening cause; but "the rule is that, if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury." Russell v. Williams, 168 Miss. 181, 193, 150 So. 528, 151 So. 372, 373. But more properly, what we have here, under the allegations of the declaration, is a case of concurrent negligence, as to which each of the concurring tort feasors is liable. The allegations of the declaration are that the injury by the express truck was the result of a method or system of operations in which the appellee railroad company was a concurrent or combination actor — for the reasons aforementioned — not that it was a mere single or isolated instance which could not reasonably have been anticipated by the railroad company; so that the third count, in the respect mentioned, presents issues for the jury, rather than questions to be determined on demurrer.
It is said further that the allegation of the declaration that it was necessary for the flagman to be looking to the rear is manifestly untrue; and it is argued that by keeping his eyes in the direction in which the train was moving, he could have looked out for himself as to the maneuvers of the express trucks and at the same time could have told just as well when the rear of the express car had reached the proper point. This is not such a matter as falls within common knowledge of which courts may or must take judicial notice, but is an issue also to be submitted to the jury; and, in any event, it might present merely a question of contributory negligence — as to which we express no opinion at this time.
Much is said also in the briefs about assumption of risk. Under the allegations of the declaration which we have already mentioned in respect to the promise by the railroad company to remedy the dangerous method of operation, that element disappears, so far as the demurrer is concerned. We have recently discussed that question in Pearl River Valley Railroad Co. v. Moody (Miss.), 171 So. 769, and nothing further is necessary to be added here.
Having concluded that the declaration in its third count is sufficient to state a cause of action, it follows that the judgment must be reversed and the cause remanded. And, inasmuch as a judgment of reversal here upon the question of liability operates to vacate the judgment of the circuit court in its entirety and to restore the parties to the exact position which they occupied before the judgment in the trial court was rendered, we do not enter into a discussion of the first and second counts, and express no opinion upon them; because, so far as we may now know, appellant might, after remand, seek and obtain permission to amend those counts, in the light of the attacks directed upon them, if he deem amendment necessary or desirable, under the facts capable of actual proof.
Reversed and remanded.