Farquhar v. Alabama & Vicksburg Railway Co.

Terral, J., delivered the opinion of the court. The appellants sued the defendant company for damages arising from the death of their son and brother, Edward Farquhar. Edward Farquhar was the yardmaster of the defendant company at Vicksburg, and, in making a transfer of the passenger train across the Mississippi river, and while riding upon a flat car propelled by the switch engine, he was thrown from the car and received fatal injuries, from which he soon thereafter died. The switch engine was running at the rate of about twenty-five miles per hour, and ran over a large iron nut then accidentally upon the track, which caused the misfortune. A demurrer to the complaint was sustained. The appellants admit that the action of the 'circuit court is in accordance with the decisions of this court in New Orleans, etc., R. R. Co. v. Hughes, 49 Miss., 258, and in Dowell v. Vicksburg, etc., R. R. Co., 61 Miss., 519, but they insist that the rule there laid down is erroneous. Counsel argue that the rule of law announced in those cases is a barbarism of feudal antiquity, when, they say, an employe had little or no legal rights, and was slightly removed above a chattel. And counsel then tell us that this rule-of feudal.barbarism was first promulgated in Priestley v. Fowler, 3 Mees. & W., 1; but a look at Priestley v. Fowler shows that case ivas decided in 1837, more than one hundred and fifty years after feudalism had been abolished in England, and when not a single serf existed in that country, and when it was the boast of English judges that when a slave put his foot upon English soil he thereby became a freeman. The doctrine pertaining to the relation of master and servant is not the outgrowth of feudalism; it belongs to all ages, and society, in its most refined and elevated conditions, requires its ■continuance. Indeed, without this relation we should drift hack into barbarism. A perusal of the Priestley-Fowler case [200] will demonstrate the justness of the principles upon which it rests, and those principles have been approved and followed by courts of the highest character and by judges of the greatest distinction. To overrule the several decisions of this court holding the doctrine here assailed, would not be justified by the facts of this case. The dropping of the iron nut upon the rails of the track was a mere accident, and the least hint from the yardmaster to the engineer would doubtless have brought the engine to a safe speed. That the engineer is not a superior agent or officer to the yardmaster is made manifest by the definition of that relation contained in Evans v. Louisville, etc., Ry. Co., 70 Miss., 527, s.c. 12 South., 581. And especially may we not overrule the cases of New Orleans, etc., R. R. Co. v. Hughes and Dowell v. Vicksburg, etc., R. R. Co., since the constitutional convention of 1890, with full knowledge of the doctrine of those cases, has, in section 193 of that instrument, defined the rights between employes and railroad corporations, and has left untouched the rights of the parties in cases like the present. The argument of counsel, that the repeal of the $100 penalty (laws 1896, ch. 63) for running locomotives or cars through cities, etc., at a greater rate of speed than six miles an hour, in effect so changes the law as to make the railroad company liable in all cases, in all events, and to all persons, for all damages sustained by any one from the locomotive or cars while they are running at a greater rate of speed than six miles per hour, is in the face of the decision of this court in Collins v. Illinois, etc., R. R. Co., 77 Miss., 855, s.c. 27 South., 837. The argument of counsel, logically followed, would lead to the conclusion 'that if the injury was inflicted upon an employe of the company while the locomotive was running through a city or incorporated town or village at a rate of speed greater -than six miles an hour, the company would be liable, though the employe wilfully and of his own wrong, and without any negligence of the company except that of running its locomotive [201] at a greater speed than six miles an hour, should cast himself under the wheels of the locomotive, and so be injured, a conclusion which would be manifestly absurd. The action of the circuit court is affirmed.