Givens v. Southern Railway Co.

Whiteield, O. J., delivered the opinion of the court. The point most seriously pressed upon us by the learned counsel for appellant is that a hand-car is within the principle of section 193 of the Constitution of 1890. The cases of Bal — 848 — lard v. Cotton Oil Mill, 81 Miss. 507, 34 South. 533, 62 L. R. A. 407, 95 Am. St. Rep. 476, Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 South. 174, and Mobile, etc., R. Co. v. Hicks, 91 Miss, 273, 46 South. 360, 124 Am. St. Rep. 679, have settled certain propositions beyond further debate in this state. These propositions are as follows: First. That section" 193 of the Constitution of 189Ó embraces alone commercial railroads, railroads proper, carrying freight and passengers, and not logging railroads or mining railroads, etc. Second. That the only reason why section 193 can be upheld as constitutional is, as held by the United States supreme court in repeated adjudications referred to in the three cases, supra, that such classification of such railroads proper can be properly maintained only because óf the fact of thé inherent danger attending the operation of such railroads by the highly dangerous agency of steam; in other words, because such commercial railroads do imperil the lives of their employees, by reason of the inherent danger of the operation of such railroad trains. Third. That even the employees of such' railroad corporations proper can only recover against such railroads where they are injured by reason of the perils attending the operation of such commercial railroads. When we said in the case of Bradford Construction Co. v. Heflin, 88 Miss., at page 361, 42 South., at page 182, that “said section 193 of our constitution applies to railroad corporations proper which are engaged in the business of common carriers transporting freight and passengers, and to such employees when injured whilst doing work in some manner connected with the operation and use of the railroads,” we meant by the word “railroads” railroads proper—commercial railroads carrying freight and passengers. To our minds the proposition that a hand-car is inherently dangerous is one that cannot be supported on reason or principle. Hand-cars are no more inherently dangerous than other modes of transportation not in any way donnected with railroads proper, and not used on the rails of — 849 — railroads proper. Wo are all clearly of the opinion that a handcar, therefore, is not within the reason which supports section 193 of our constitution as a constitutional provision not in conflict with the fourteenth amendment to the constitution of the United States. It is plain that the legislature of this state so understood the'three cases which we have above referred to, because the legislature of this state in Laws 1908, p. 204, ch. 194, extended the protection of section 193 to a new class of employees, and provided therein that “every employee of a railroad corporation and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, shall have the same rights and remedies for an injury suffered by hinj from the act or omission of such railroad corporation or others, or their employees, as are allowed by law to other persons not employed.” But this act is prospective, and, if properly within the principle of section 193 of the constitution as to hand-cars, or cars operated by lever power, furnishes no protection to the injury of the person in this case, who was injured prior to the passage of this act. Learned counsel for appellant, in an exceedingly strong brief, has referred us to many decisions, chiefly in Wisconsin, Minnesota, Texas, Kansas, and Alabama, holding that a hand-car is within the various acts t>f the legislature in those particular states. But ■ none of those acts in any of those states are couched in the same language as is contained in section 193 of our constitution. The Kansas act is set out in Union Trust Company v. Thomason, 25 Kan. 3, and is as follows: “Every' railroad company organized or doing business in this state shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage.” The court in that ease held that it embraced hand-ears. That may have been a proper construc — 850 — tion of the statute, as to which wé say nothing; but that statute is not identical with section 193 of our constitution. In the case of Kansas City, etc., R. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262, the statute of that state, Alabama (sec. 2500 subd. 5, of the Code of 1886), provided: “When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car or train upon a railway”—and the court properly held that the language, “any person who has in charge or control any car upon a railway,” embraced a hand-car. That statute, which is very much like the English employer’s liability act, as we have in the throe opinions, supra, pointed out, is broad enough to cover a hand-car. In the case of Benson v. Chicago, etc., R. Co., 15 Minn. 163, 77 N. W. 798, 74 Am. St. Rep. 444, the action was brought under Laws Wis. 1893, p. 268, ch. 220, which provided: “Every railroad or railway company operating any railroad or railway, the line of which shall be in whole or in part within this state, shall be liable for all damages sustained within this state, by any employee of such company, without contributory negligence on his part . . . while any such employee is so engaged in operating, running, riding upon, or switching passenger or freight or other trains, engines, ■or cars, and while engaged in the performance of his duty as such employee, and when such injury shall have been caused by the carelessness or negligence of any other employee, officer, or agent of such company in the discharge of, or for failure to discharge his duties as such.” All that the court held in that case was, construing that statute, that “or other cars”—that is, other cars than switching, passenger or freight cars—was broad enough to cover a hand-car, which decision we think perfectly sound on that statute. In the case of Perez v. San Antonio & A. P. Ry. Go., from the court of civil appeals of Texas, in 28 Tex. Civ. App. 255, 67 S. W. 137, the act there in question, article 4560/, Sayles’ Ann. Civ. St. 1897, provided: “Every — 851 — person, receiver, or corporation operating a railroad or street railway the line of which shall be situated in whole or in part in this state, shall he liable for all damages sustained by any servant or employee thereof while engaged in the work of oper-. ating the cars, locomotives or trains of such person, receiver or corporation, by reason of the negligence of any other servant or employee of such person, receiver or corporation, and the fact that such servants or employees were fellow servants with each other shall not impair or destroy such liability.” The court held in that base that, a hand car was within that statute, and that the plaintiff was engaged, in that case in the work of operating a car within that statute, which is not identical with ours. The court thought the words of that statute broad enough to include a hand car. Whether correct or not in its holding, the judgment being, as is noted, by the Court of Civil Appeals, and not the supreme court of. Texas, it is sufficient to say that the statute is not identical with our section 193 in its language. The cases, therefore, from Texas, Minnesota, Wisconsin, and Alabama, are not at all controlling with us, because some of the statutes are markedly different from our section 193, and the statutes of Texas and Nansas are certainly not identical. The state upon whose decisions the learned counsel for appellant chiefly relies is the state of Iowa, and the case which he presses upon us most strongly is the ease of C., M. & St. P. Ry. Co. v. James Artery, which was first decided by the circuit court of the United States for'the Northern District of Iowa, and afterwards affirmed by the United States Supreme Court. See 137 U. S. 507, 11 Sup. Ct. 129, 34 L. Ed. 747. The statute of Iowa in that case construed, first passed in 1862, and after-wards modified by Code 1873, § 1307, is as follows: “Section 1307. Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of agents, or by • any mismanagement of the engineers or other employees of the corporation, and in consequence of the willful wrongs, whether — 852 — of commission or omission, of such agents, engineers or other employees, when such wrongs are in any manner connected with the use and operation of any railway, on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.” The language of that statute is markedly different from our section 193, in that it provides for damages suffered by any employee “when such wrongs are in any manner connected with the use and operation of any railway, on or about which they shall be employed.” This language is extremely broad and very much stronger than section 193 of our Constitution. The Supreme Court of the United States reviewed in that opinion quite a number of opinions of the supreme court of Iowa, and followed, naturally, the construction put upon that statutue by the supreme court of Iowa, and it is true, added, what it was wholly unnnecessary to add, that this Avas obviously the proper interpretation of the statute; but the United States supreme court expressly sets out in full the facts of said case, which facts show, as it held, that within the meaning of the Iowa statute the injury Avas “directly connected Avith the use and operation of the railway.” In that case, the injured party was sitting on a hand car, holding a shovel on the top of the rail, with a vieAV to cleaning the snow off the top of the rail as the hand car moved, in order to make the railway safe. Under these circumstances under the broad language of that statute, giving the right to an injured employee when the wrong was in any manner connected with the operation and use of any railway, it was very properly held that the plaintiff in that case came within that statute. But the language of that act is markedly different from and far broader than the language of our section 193; and not only is this true, but it is ' further true that the plaintiff in this case Avas not injured while doing any work connected with the operation of this railroad proper. In Labatt on Master and Servant, vol. 2, in an elaborate note, to wit, note 4, p. 2114, the author has collected, with discrimina — 853 — tion and care, all the cases from the state of Iowa, showing what employees are held to- be within that statute, and what not. We call special attention to the case of Luce v. Chicago, etc., R. Co., 67 Iowa, 75, 24 N. W. 600, and other cases cited in the note at page 2118, and Malone v. Burlington, etc., R. Co., 65 Iowa, 417, 21 N. W. 756, 54 Am. Rep. 11, a very carefully considered and correct opinion, in which it was held, as stated in the syllabus that: “An employee of a railroad company, whose duty it is to wipe engines, open and close the doors of an engine house, and remove snow from a turntable and connecting tracks, is not, by by reason of such duties, in any proper sense employed in the; operation of the railroad, within the moaning of section 1307 of the Code; and for an injury received, while performing such duties, through the negligence of a co-employee, he cannot recover against the company, under the provisions of said section, notwithstanding he may have other duties to perform which do pertain to the operation of the road. Deppe v. C., R. I. & P. Ry. Co., 36 Iowa, 53, distinguished, as having been decided under a different statute.” AVe think, after a most careful consideration of this case and all the decisions that have been cited, especially in view of the very careful construction of our section 193 of the Constitution of 1890, which we have made in the three cases first referred to in this opinion,. that a hand car in no proper sense be held to be inherently dangerous, within the principle saving section 193 of our Constitution from unconstitutionality. So to interpret our constitutional provision would be to expose that provision, in our judgment, to- the condemnation of the supreme court of the United States, on the reasoning of that court in many cases, resting the constitutionality of statutes like section 193 of our Constitution of 1890 on the ground of the inherent danger attending the operation of a steam railroad proper, operated by the highly dangerous agency 'of steam. The construction which we have heretofore put upon this section of our Constitution was so placed upon it to secure — 854 — to the employees of railroad corporations proper the guaranties which that section provides, and not to extend its spirit and its purpose beyond what we have said they were, in order to avoid any overthrow of section 193, as offending against the fourteenth amendment to the Constitution of the United States. That section, as we have pointed out, in its last clause, authorized the legislature to extend its benefits in a proper constitutional way to other classes of employees, and in the act of 1908, to which we have referred, the legislature has made the attempt to do this. We are, therefore, on this branch of the case, clearly of the opinion that a hand car is not within the principle of section 193 of our Constitution. The case of Norfolk & Portsmouth Traction Co. v. A. C. Ellington, Adm’r, etc., 108 Va. 245, 61 S. E. 779, 17 L. R. A. (N. S.) 117, is a Virginia case, very ably reasoned, in the course of which Whittle, J., speaking for the court, held that an electric street railway was not within their constitutional provision, Avhich was tantamount to holding that it was not inherently dangerous, since their constitutional provision, like ours, rests'upon the inherent dangerousness of the operation of steam railroads. The opinion is a masterly one, and this holding is strongly persuasive of the correctness of our view that under our Constitution, from which the Virginia Constitution is taken, a hand car is not inherently dangerous. The case of Morris v. Railroad Co., 88 Miss. 539, 41 South. 267, is supposed by learned counsel for appellant to have been decided under section 193 of the Constitution; but this is a mistake. That section Avas not referred to in the briefs of either counsel in that case, nor in the opinion of the court. If that case liad been decided under section 193 of the Constitution, it was manifestly overruled by the Heflin case, supra, which was decided after the Morris case. "We do not understand the learned counsel for appellant to contend at all in this case that the plaintiff was not a fellow servant with Sims and the rest of the crew on the leArer car with Sims. Manifestly, under the decisions of — 855 — this court for years aud years prior to the decision in the Morris case, the plaintiff was such fellow servant with Sims and those working with Sims; and it is perfectly clear that the negligence which caused his injury was the gross negligence of Sims in not having the lever car held at a proper distance from the push car whilst the plaintiff was stopping the push car. The decision in the Morris case was rendered upon the theory that the act of negligence which injured the party in that case was the act of the superintendent of the gang. This is shown by the language of the opinion delivered- by Mr. Justice Oaliioon. In other words, it was held in that case that the injured party was injured directly by the negligence of the superintendent who was held to be, in that case, the vice- principal of the company. But this case cannot be aided by the Morris case, in that view. The facts of this ease, on this precise point, distinguish it plainly from the Morris case. Here Givens was not injured in. consequence of the order of Sims, ratified by Shields, the foreman of the crew, treating it, as plaintiff’s counsel does, as the order of said foreman Shields. It was a perfectly proper order to have been given, and a perfectly proper order to have obeyed, and Givens was not injured because of his obedience to that order; but he was injured manifestly by the gross negligence of Sims, the subhoss, a mere subordinate. It was this negligence of Sims, or those with him on the lever car, in not checking up that car, which caused the injury to the appellant; not the order of Shields to the appellant to get off and stop the push car. In the Morris case the injury was inflicted by the direct order of the superintendent himself. Here the order of the superintendent had nothing to do with the injury—was a mere condition of the injury, the causa sine qua non; but the gross negligence of Sims was the causa causans, and his act imposed no liability on the company, since he was a mere subordinate and fellow servant, in our opinion, with the appellant. It is the misfortune of the appellant in this case that his injuries should have occurred at a time prior to the passage of the act attempt — 856 — ing to' malee the railroad liable for injuries inflicted in the operation of hand cars. On Const. § 193, and law, as it stood when this injury occurred, and under both Constitution and said laws as they have been interpreted in the three cases, supra, cited at the beginning of this opinion, the action of the learned court below was correct, and the judgment is affirmed. Affirmed.