Illinois Central Railroad v. Woolley

OaltiooN, J., delivered tbe opinion of tbe court. The death of plaintiff’s husband having occurred on November 25th, 1895, and before the acts of 1896, and he, being an employe of the company, his widow could not sue basing her action on § 193 of the constitution as to fellow-servants, as was held in Illinois, etc., R. R. Co. v. Hunter, 70 Miss., 471. This she concedes, and therefore she places her right to' sue on the case of White v. Louisville, etc., R’y Co., 72 Miss., 12, which holds that she may sue where her claim is not on the: ground that the death was caused by the negligence of a fellow-servant, but because of the negligence of the company in not providing a safe railway. Such right to sue for the company’s negligence that case holds to exist independently of the constitutional provision. It follows that if the negligence of the company showed a want of ordinary care and was the proximate cause of the death in this case, Mrs. Woolley had a right of action, otherwise not. On this line of inquiry the facts viewed most strongly for her are that the company had a side-track at its station, Lamar; that, starting from its switch junction with the main track, it ran south to the north end of the depot house about four hundred and fifty feet, and thence on south past the house; that from the house north towards the main track there was a down grade, and that this siding had been there as it then was for fourteen years certainly, and how much longer is not in evidence. The proof undisputed is that an empty box car had been on this siding two or three days. About two hours before the accident a freight train had run in on this siding, and had to move this car, but, before leaving, left it where it was- before, and a brakesman had set the brakes. The brakes were in perfect order, and of the kind in use for cars of that sort not provided for air-brakes, but the car was not blocked in addition to setting the brakes. This car- standing where it thou [942] stood with proper brakes on. it could not have been blown down the siding to the switch; it would have blown over first. íf, in addition to the application of the brakes, it had had its wheels blobked, the impossibility would have been absolute even if it had not been absolute before. It was standing there when the depot agent went to supper. After dark that night there was a severe wind and. rain storm blowing from south to north, or from southwest to northeast. At about 7 o’clock that night Mr. Woolley, the deceased, was the engineer of a passenger train coming south, running at the rate of thirty-five to forty miles an hour, the night being very dark, and his engine ran into this same car, which, by some means or other undisclosed by testimony, had moved from its place at the depot or cotton platform, equally far or farther, down to the switch junction and protruded over the main track. Mr. Woollev wa.s instantly killed. The rule of duty of a. master to his servant is not so strict as his duty to the public who hire his services for transportation. He is held only to reasonable care in furnishing his servants with safe ways, appliances and machinery, and, in an action for damages, the servant is held to make it clear that the negligence of the master was the proximate cause. Nor is a railway company bound to furnish its employes with an absolutely safe track, the requirement being that it shall be reasonably careful in keeping it in safe condition. 14 Am. & Eng. Ene. L., 879. It is not actionable negligence in itself for a railroad company to have grades on its main tracks or its sidings so far as its employes are concerned. All they can require is that reasonable precautions are taken to prevent dangerous results. Whether the box car in the case before us was in fact left standing on an incline, or, as the great preponderance of evidence is, on a level beyond the incline, is of no consequence unless the incline was the proximate cause of the injury, and [943] that some intervening act of negligence of other employes of the company was not the proximate cause. Because, by reason of the incline, a car might at some time be left unblocked by the disobedience of rules and orders by other employes, and because a wind of sufficient force might some time arise, and might be blowing in the right direction, and might move the car to the main line, and might protrude it over the main track, and an engineer might not see it and might run on it and be killed, is not sufficient to show actionable negligence on the part of the company where the intervening negligence of a servant left the car so it could be so moved. It is perfectly plain that the car with brakes applied was absolutely safe. Howr it "was moved no one can say. We know, however, by evidence uncontradicted, that if the car had its brakes properly applied, the wind could not have done it. “In order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence, and that it was such as might or ought to have been foreseen in the light of the attending circumstances.” 16 Am. & Eng. Ene. L., 436. Now, by the rules of the company in proof, cars left on sidings are required to have their brakes properly set, and, if the brakes are out of order, to have their wheels blocked, and in all eases where they are left on a grade, the wheels must be blocked in addition to the brakes being properly set. If the car in the instant case was left on a level and had its brakes set, the proof' undisputed is that it was safe. • If it was left on a grade the duty of the employes was both to brake and block it. This car was not blocked. A failure to obey these orders was the negligence of the employes and not of the company, and was the proximate cause of the injury. If these orders had been obeyed, harm was not only improbable, but impossible. If they were not obeyed, the company is not responsible. Remembering that, before plaintiff can recover in her action, [944] brought when it was, the burden is on her to show that the proximate cause of the death actually was the negligence of the company, and not merely that it might have been so caused, as held in Illinois, etc., R. R. Co. v. Cathey, 70 Miss., 332, announcing an old and well-recognized principle, and it follows that recovery cannot be had because no safety switch was provided. If this need any further mention, it is enough to say that all employes are chargeable with notice of the rules. By the terms of one of these they knew that some switch tracks were on grades, and that in such cases employes were charged with the duty of braking and also blocking the wheels of loose cars, and they took the risk of obedience to this order. In such shape such cars were absolutely safe, and a safety switch would be useless if orders to keep them properly set were not obeyed. Beversed and remanded.