Yazoo & Mississippi Valley Railroad v. Schraag

Whitfield, O. J., delivered the opinion of the court. We think the question of contributory negligence in this case was properly left to the jury, and has by the jury been properly settled. The evidence shows a case remarkable for the extent and variety of negligence on the part of the defendant railroad company. We have given the entire record the most careful consideration, and, unless the case is one in which no recovery at all is warranted under any declaration possible to be framed, this judgment must be affirmed. Perhaps the most earnest insistence of learned counsel for appellant at this bar is upon grounds not presented at all in the court below. We may clear the way to decision by saying at once that, in so far as the declaration in this case seeks to recover under chapter 66, p. 84, of the laws of 1898, or chapter 87, p. 97, of the acts of 1896, it is not maintainable, because those acts have been declared unconstitutional in Ballard v. Miss. Cotton Oil Co., 81 Miss., 507 (34 So Rep., 533; 62 L. R. A., 407). Counsel for the plaintiff below insists that he has a right of recovery on common-law grounds because of a defective track, the argument being that the obstruction of the track constituted a defective track within the meaning of the rule of law upon that .subject, and it is stated in aid of this view that while this track, with its peculiar construction — around a sharp curve and a high hill— might have been a safe track when Vicksburg was a small place, it cannot be held to be so now, in view of the vast advance — 145 — in the facilities for transportation, and. in view of tbe many tracks made necessary by the growth of tbe city. Tbis contention, on tbe evidence in tbis case, is manifestly untenable. It is perfectly plain that tbe injury here was not due to any defect in the track itself, constituting it, within tbe law on that subject, an unsafe roadway; but to tbe grossly negligent occupation of tbe track (safe enough in itself) by tbis switch engine crew on tbe time of tbe passenger train. It is next insisted by counsel for appellee that plaintiff is entitled to recover under either of two grounds: First, on the ground that the injury was directly due to the negligence of the yardmaster, a superior agent of the defendant corporation, under section 193 of the constitution; and, second, that said negligence of said superior agent or officer, and of the engineer Dart, furnishes a cause of action to the deceased employe, without reference to section 193 of the constitution, on the common-law ground that this yardmaster and engineer were manifestly incompetent employes, and not selected with due care; and that the negligence of the said yardmaster exercising the powers be exercised, under the rules of the corporation in evidence in this ease, in sending out a green engineer, such as Dart was plainly shown to be, and an engine overloaded with a heavy train of cars, thirty-one in number, on a steep up-grade, and in being without a watch upon such a vital occasion as this, in sending out a switch engine without a proper headlight, and giving “the high ball signal” to the switch engineer to go, in the direction of a very rapidly approaching train, around a curve, as rapidly as possible, at a time when the passenger train was practically due, indubitably stamped him, the said yardmaster, as being an incompetent and unfit employe to be intrusted with such powers, and fixed upon the corporation itself inescapable negligence in intrusting such an employe with so important a post. And it is said that this last cause of action is properly brought by the widow on the common-law doctrine as to the right, and under section 2, cb. 65, p. 83, Acts 1898, as to the remedy, as held in — 146 — White v. R. R. Co., 72 Miss., 12 (16 So. Rep., 248); R. R. Co. v. Woolley, 77 Miss., 941 (28 So. Rep., 26), and Bussey v. R. R. Co., 79 Miss., 597 (31 So. Rep., 212). We will deal with this second cause of action based on the common-law principle first; and, as to this, learned counsel for appellant conceded the soundness of the general principle contended for by appllee; that is to say, that such cause of action is maintainable by the widow under said section 2 of chapter 65, p. 83, of the acts of 1898. But they say that the declaration here does not state this cause of action at all, but is based entirely on “the intervening negligence of fellow-servants.” We think learned counsel for appellant mistake the scope of the declaration and the effect of the testimony in this case. We are clearly of the opinion that the testimony in this cause makes out a clear liability on the part of the defendant company on the common-law ground just stated. The cause of action on this ground is abundantly made out by the testimony. In all the extreme applications of the fellow-servant doctrine in this state in past adjudications, one thing was yet always consistently adhered to, to wit, that the failure to select and furnish fit and competent employes was the failure of the master himself to discharge a personal duty which he owed his employes, and which he could not delegate to another; and, of course", was such negligence of the master himself as entitled the injured party to recover therefor. This negligence is established in this case beyond, controversy. The only defense, therefore, that the appellant can interpose along this line is not that the cause is not proven, but that the declaration did not specifically count on this ground; in other words, we must deal with a thoroughly established cause of liability on this ground on the proof, and then determine whether this objection on the ground of improper pleading can be made in this court for the first time. We here set out the material parts of the declaration in its first and second counts, which are as follows: “Bor that whereas heretofore, to wit, on the 6th day of — 147 — January, 1902, the said defendant, the Yazoo & Mississipui Valley Railroad Company, was in charge of and operating a railroad extending through the state of Mississippi, which passed and now passes through the counties of Copiah and Warren, and other counties in said state, and in the operation of said railroad the said defendant, at the time aforesaid, had in use, and running thereon locomotives and cars, propelled by steam, and the plaintiff’s husband, Samuel Sehraag, was a locomotive engineer in charge of the northbound passenger train known as No. 26, which was due in Vicksburg at 6:45 a. m., and was due at the freight yard of said defendant company in the city of Vicksburg at 6:40 a. m. The said defendant also had, in use and operation, in the city of Vicksburg, in said county of Warren, at that time, a freightyard, in which yard the defendant company was in the habit of making up trains of cars to be sent out in its service, and doing such other things as were convenient and necessary to the operation of its business. On said 6th day of January, 1902, the said Samuel Sehraag, deceased, was in charge of the engine hauling said train No. 26 belonging to the defendant corporation, and under the directions of said defendant company was hauling said train with a load of passengers thereon to said city of Vicksburg in Warren county, Miss., and he was entitled, under the rules of said company, to a clear and unobstructed track throughout said county of Warren to his destination at said city of Vicksburg, and while so engaged, and exercising due care for his own safety and that of his crew and passengers, his engine going north collided, in said county of Warren, in the state of Mississippi, with engine No. 42, and a train of over thirty freight cars in charge of one John Dart, engineer, which said engines and cars belonged to and were being operated by the agents and servants of the defendant company at the time, and which had been carelessly, recklessly, and negligently ordered out of the yards of said company, in said county of Warren, by the agents and servants of said defendant company who were engaged in ‘an — 148 — other department o£labor/ and ‘about a different piece of work/ and which were going south on the track of the defendant company, on a curve of the defendant’s track, at a great rate of speed, at the time when the said train, No. 26, in charge of said Samuel Schraag, was entitled to the right of way and a clear track, and the said Samuel Schraag was so bruised, mangled, torn, and scalded by such collision, occasioned as aforesaid, that he died within a few minutes thereafter from the effects thereof, after suffering the most excruciating agony. “Plaintiff further avers that said collision occurred at a point where the track of the defendant company runs close to the edge of an embankment from sixteen to twenty feet high, and said Schraag, by most heroic efforts, managed to get his train in check, and to hold the same on the track, and thus save the lives of his passengers and the property of the defendant company then in his charge, though it was impossible for him to do this and save his own life after he first- saw that the track to which he was entitled was obstructed by another engine and train of cars so negligently allowed by the defendant company to occupy • said track at the time he was entitled to' the same free from all obstructions.” It is true that the declaration in the first count does not use the words “superior agent,” but it expressly says, which said engine “had been carelessly, recklessly, and negligently ordered out of the yards” by the agents and servants of said defendant company who were engaged in “another department of labor.” The declaration' expressly recites that Schraag’s train was due at the yards at 6:40 a. m. ; that the defendant had a freight yard, “in which yard the defendant company was in the habit of making up trains of cars to be sent out in its service, and doing such other things as were convenient and necessary to the operation of its businessand it further expressly avers that the switch engine No. 42, with a train of thirty freight cars, was so ordered out by the agent aforesaid, and the collision is directly charged to be due to this reckless ordering out of this — 149 — engine on the track by the company’s negligence. We do not think it at all a strained construction that the declaration does charge, in effect, that this ordering out was by a “superior agent,” having the right to so order, and ordered out, too, in the very time when the passenger train was entitled to a clear track, and ordered out, furthermore, on a track which curved very sharply around a very high embankment; and it will be specially noted that the- declaration, in the second count, expressly avers that it was impossible for Sehraag to get ,his train in check after he first saw that the track, to which he was entitled, was obstructed by another engine and train of cars, and that such obstruction was, throuffh the'order of the superior agent, negligently allowed by the defendant company to be made on said track at the time when he was entitled to the same free from obstructions. Here, indeed, is a direct charge that the collision was due to the negligence of the defendant company, and not to the negligence of any fellow-servant. It is true, it is a very general charge that it makes; that it does not, in so many words, say that the specific negligence of the company consisted in furnishing incompetent employes; but the case falls, in this regard, precisely within that of Railroad Co. v. Price, 72 Miss., 869 (18 So. Rep., 415). It must be remembered that no demurrer was interposed to this declaration, and that no objection was made on the score of insufficient pleading in any way, and that no objection was made to the introduction of testimony that makes out the cause on this common-law ground, at any time during the trial, on the ground of variance. Had any objection been made, at one time or another, it would have been immediately remedied by a proper amendment. In the Price case a recovery was insisted upon because the railroad company had failed “to instruct its inexperienced switchman as to how a particular coupling should be made.” The declaration in the case did not specify this as the ground of recovery. There, just as here, no objection was taken to the declaration on this ground in the court below, — 150 — nor was there any objection on the ground of variance be-i tween the declaration and the proof; and yet the case pivoted precisely and exactly upon this proposition: that the plaintiff was entitled to recover solely, if at all, on the ground that the defendant company had so failed “to instruct its inexperienced switchman how to make this coupling.” When the case got to this court for the first time, that objection was pressed, and we met it through Woods, J., as follows: “Just here, however, the appellant contends that the failure of the railroad to instruct its inexperienced switchman as to how this particular coupling should be made cannot be considered by us, because that was not the ground of complaint made'by the declaration, and is not the negligence charged. The declaration was defective in not distinctly averring the inexperience and ignorance of appellee, and the failure of appellant to instruct or warn him; but it did aver, in general terms, injury because of appellant’s negligence in furnishing dangerous cars or appliances. The appellant pleaded the contributory negligence of "appellee, and he replied, denying the plea. On trial, anticipating appellant’s evidence that he had placed his arm between the bumpers, where inevitably it would be crushed when the cars came together in making up the train, the appellee offered evidence to show, in avoidance of the effect of this anticipated evidence, that he was inexperienced and ignorant of the proper method of making the coupling that day required of him, and that he was not warned of the extrahazardous nature of the service required by his superiors, nor instructed at all how to make the coupling; The railroad did not object to the introduction of this testimony, but joined issue with its adversary, electing to take the chances of a favorable verdict on the whole case as presented, including this evidence of which it now complains. The averments of the declaration did not show one cause of action, and the complained-of evidence supports another and different cause of action. The appellant did not then so think. It did not object to this evidence as incompetent, and, if it had, the court would — 151 — have permitted the appellee instantly to amend his defective pleading. Section 718, Code 1892, declares that ‘a variance between the allegation in a pleading and the proof shall not be deemed material, unless it shall actually mislead the adverse party, to his prejudice, in maintaining his action or defense upon the merits; and where it shall not be shown to the satisfaction of the court that the party has been so misled, an immediate amendment of the pleadings may be made without costs, and without delaying the cause. If the party have been so actually misled, an amendment may be allowed on such terms as shall be just.’ Among many other provisions of our statute of joefails (sec. 746, Id.), it is declared that a judgment shall not be reversed, after verdict, ‘for omitting the averment of any matter without proving which the jury ought not to have given such verdict.’ In considering this statute it was said in Holmes v. Preston, 70 Miss., 152 (12 So. Rep., 202) : ‘If a defectively stated case is well proved, the verdict cures the defect of the pleading, and so, after verdict, nothing to the contrary appearing in the record, it would be presumed that a case was proved entitling the successful plaintiff to the verdict secured,’ etc. See the same case, 71 Miss., 541 (14 So. Rep., 455).” That case covers this precisely. This declaration cannot, under any reasonable construction, be said to show one cause of action, and the evidence to support another and different cause of action. The declaration does, though defectively, state as one of the grounds of recovery the negligence of the defendant company itself; nay, more, it specified that that negligence consisted in ordering out this switch engine recklessly, carelessly, and negligently, on the track, at the time when the passenger train was due. This ordering out was made by the superior agent — some one having the right to order — and this agent was manifestly incompetent. It is too late now to object, on the single ground to which appellant must be confined, that, as a matter of pleading, the declaration did not at all state this ground of action; too late for two reasons: First, because we152 think it does state such general negligence quite as sufficiently as it was stated in the Price case; second,' because this is not a case, as insisted by learned counsel for appellant, in which the appellee has no cause of action, however she might frame her declaration. Counsel for appellant attempts to meet the Price case, supra, by citing the cases of Burke v. Shaw, 59 Miss., 443 (42 Am. Rep., 370); Vaughn v. Hudson, 59 Miss., 421; Gabbert v. Wallace, 66 Miss., 618 (5 So. Rep., 394.); Cole v. Coon, 70 Miss., 634 (12 So. Rep., 849). Counsel correctly cited these cases as holding that, where a question goes to the very foundation of plaintiff’s right of action, it may be raised in this court for the first time. That doctrine is perfectly sound, b.ut that is not the case here. This is not a case where Mrs. Schraag has no right of action at all; it is a case where the testimony shows that she is clearly entitled to recover on the ground indicated. Counsel’s objection, in short, “has this extent — no morethat she is simply not entitled to recover under this declaration; and, that being the extent of his objection, he was bound under sections 718, 746, of the code of 1892, to interpose it seasonably in the court below, because it is at last nothing but an objection to the form of pleading; objection, emphatically, not to the plaintiff’s right to recover upon a properly stated cause, but objection solely to her right to recover because of an insufficiently stated cause. Burlce v. Shaw was a case in which the court held that the plaintiff had no right to recover in any form of action, because the ashes were neither the property of the foundry nor on its ground. Vaughn v. Hudson was a case in which the court below had ordered a sum of money —which should have been paid in part to the widow, Prances— to be paid wholly to the five children of herself and her deceased husband. This court simply said that the widow was entitled to her one-sixth part, and that in no possible view could the decree taking that from her be approved. Gabbert v. Wallace was a case in which the court held that a mortgagee could not, under any form of declaration, recover for damages tor — 153 — tiously 'inflicted on the mortgaged property, when the mortgagee had no assignment of the mortgagor’s right so to sue. Cole v. Coon was a case in which the court held that section 1709 of the code of 1871 was not a statute of limitations merely, but a positive statutory declaration that a tax title could not be assailed under certain circumstances; in other words, that the statute declared a legal bar to any sort of action, at law or in equity, under given circumstances, to assail a tax title. It must be plainly obvious that these eases, holding the doctrine that where the plaintiff could not, in any possible view, have a cause of action— could not, in any possible view, frame a declaration under which he could recover — have no application in a case like this, where the objection is not that Mrs. Schraag has no right of action at all, but simply and merely that she has not in this particular declaration stated a cause' of action on which she could recover. Let us be clearly understood here. We do not concur in the view of counsel for apnellant that the declaration does not state this ground of action at all, but we say it does state it just as fully as the Price case stated the ground of action therein. In one case, just as in the other, the declaration charges the company with negligence, but in a general way only. In neither does the declaration particularly define the specific kind of negligence, and yet in both it must be true, as held in the Price case, objection, not because of a total absence from the declaration of any charge of negligence on the master’s part, but because simply of a failure to specifically state the precise negligence, cannot be made here for the first time. It may be suggested that the declaration was probably framed and the case tried in the court below before the decision in the Ballard case, and that on that account no demurrer was filed to the declaration, and no objection made on the ground of variance in the court below, and that appellant should be permitted to make the objection here for the first time. This, however, is not a tenable suggestion. Indeed, it is not urged at all by counsel for appellant. But besides all this, there is another — 154 — most potent reason against entertaining' the objection here for the first time, in addition to what has been stated, and that is this: The defendant itself, in the court below, asked this instruction (No. 8), which was given: “If Schraag was killed by the negligence of the yardmaster or those managing the switch engine, or by the negligence of both combined, the plaintiff in this case could recover, and is entitled to a verdict, provided Schraag himself was free from carelessness contributing to his injury; but, if Schraag could have seen the switch engine or its headlight in time to have stopped his train and avoided the collision, the plaintiff cannot recover, however negligent the yardmaster or those handling the switch engine were. If Schraag’s carelessness in failing to see the switch engine or its headlight was one of the causes contributing to his death, then this plaintiff must fail, and it not entitled to a verdict.” From this instruction it is plain that defendant itself invoked the doctrine that defendant was liable if Schraag was killed by the negligence either of the yardmaster or of those handling tbe switch engine, or by the negligence of both combined, unless, and only unless, the plaintiff was guilty of contributory negligence. In other words, the defendant not only failed to make the point now being made against the declaration as a matter of pleading, but it proceeded, throughout the entire trial, on the manifest theory that the contributory negligence of the plaintiff was the only defense available to the defendant. The record shows that, when the rules of the company wqre introduced to show that those rules had been violated by the defendant in a great variety of instances, the defendant “admitted, by its counsel, that rules 92, 99 and 99c were all violated by the defendant, and that the defendant was guilty of negligence.” It added to this admission its own request for the instruction No. 8, above set out. ' The case, therefore, is not only one in which no exception was taken in any way to the pleading in the court below, and in which no objection was made on the ground of variance in the court below, but one in which, — 155 — in addition to all this, it actually places the cause, by said instruction 8, on .the sole ground of the contributory negligence of the plaintiff. This court has held in L. & L., etc., Co. v. Van Os, etc., 63 Miss., 440 (56 Am. Rep., 810); Wilson v. Zook, 69 Miss., 694 (13 So. Rep., 351), and Clisby, Use, et al. v. M. & O. R. R. Co., 78 Miss., 937 (29 So. Rep., 913), that in such cases the party asking an instruction which places the defense on such single ground cannot be heard to complain here if it is held to the position it assumed in such instruction. It is suggested in argument that appellant did raise the point in the court below by asking for a peremptory instruction. But asking for a peremptory instruction is entirely too perfunctory a mode of making so specific an objection. It was too general an objection. The court below doubtless never dreamed that this request for a peremptory instruction was meant to raise the point here pressed. It is said, again, that the decision contravenes the Ballard case. It is in perfect harmony with the Ballard case. We held in the Ballard case that the plaintiff knew that the ladder was defective, and hence could not recover at common law, and so must recover, if at all, under chapter 66, p. 84, of the laws of 1898, making such knowledge no defense. But we held that said act was unconstitutional. Here we hold that this plaintiff can recover, not under the act of 1898, but under the common law, on the ground of the employment, without due care, by the company of incompetent employes, Hart and Earp, engineer and yardmaster. No common-law ground was involved in the Ballard case. Nothing but a common-law liability is here involved. It is said, again, that our view contravenes t-he decision in the Bussey case. On the contrary, this decision reposes on that very case, wherein we expressly said (79 Miss., 609, 610; 31 So. Rep., 212) : “It is said that chapter 65 has no relation to suits by employes at all — not even where the employe sues on the ground of negligence of the master alone; and the court be — 156 — low so held, notwithstanding section 2 of said chapter 65 plainly says, ‘This act shall apply to all personal injuries of servants or employes received in the service or business of the master, where such injuries result in death.’ This section cannot thus be read as blank paper. It expressly applies the principle of Lord Campbell’s act' — recoveries for injuries resulting in death —to all employes, when the injuries were due to the negligence of the master. It was part of a statutory scheme that had never assumed to deal with injuries caused by the negligence of fellow-servants in any way whatever, and it was not dealing with them.” The Bussey ease, the White case, and the Woolley case directly support our view. It is said there really is no variance, and that, if that objection had been made, it would have been shown that the evidence corresponded with the first count in the declaration. We think the variance is perfectly manifest between the testimony and both counts. The variance is in this: that, while the second count proceeds on a general charge of negligence, there is no specific allegation of the precise negligence of the company in furnishing incompetent employes. It is, in its nature and in its extent, the same sort of variance that was shown in the Price case. But it was nothing but a variance, and, to have been availed of, must have been taken advantage of in the court below. The very furthest reach of the point pressed here would simply be to reverse and remand the cause for amendment of the declaration. But it surely must be too plain for discussion that if the defect in the pleading be amendable, it must, perforce, be cured, in case of failure to object below, by sections 718 and 746 of the code of 1892, as construed in the Price case, supra. We have not ourselves set out in detail the evidence, but the reporter will do that — especially the testimony of the witness, Schmidt, and the testimony showing the experiments demonstrating the inability of Schraag to have stopped his engine in time to prevent the collision after he saw the switch engine. We only add that the testimony shows that the railroad company — 157 — discharged this yardmaster and all the other employes connected with the switch-engine crew immediately after the happening of this injury. On this ground, therefore, the judgment is affirmed. Truly, J., dissented.