Short v. New Orleans & North-eastern Railroad

Campbell, C. J., delivered the opinion of the court. Under the law, as settled before the constitution of 1890, the plaintiff had no case. He failed to make out a case under §193 of that constitution, because he did not produce any evidence that the injury complained of resulted from the negligence of a superior agent or officer, or person having the right to control or direct the services of the party injured,' [851] or a fellow-servant engaged in another department of labor, etc. Indeed, there is an utter want of evidence of any negligence by anybody. The deceased was killed, and no one knows how. That is not enough to subject the railroad company to liability. Negligence must be shown: The rule applicable in case of injury to passengers does not apply to an employe. The statute, existing prior to the constitution, whereby it was devolved on railroad companies to exculpate, in case of injury from running of the locomotive or cars (§ 1059, code of 1880), does not embrace employes, who were not within its contemplation. Railroad Co. v. Hughes, 49 Miss., 258; Dowell v. Railroad Co., 61 Miss., 519. Whether the father, as such, may maintain an action for the death of his son, in eases where a right of recovery is declared b}r § 198 of the constitution, has not been argued in this ease, and we pretermit any intimation as to this, which is mentioned for the purpose of excluding the conclusion that this question was either overlooked or impliedly decided. Its consideration and decision was unnecessary, in vietv of the conclusion that the plaintiff' did not make out his ease, if entitled to sue. Affirmed.