Yazoo & Mississippi Valley Railroad v. Scott

Rletchbr, J., delivered the opinion of the court. The appellant company chiefly complains because the court declined to submit to the jury the question of contributory negligence. The case arises under section 4056 of the Code, which is for the most part but a rescript of section 193 of the Constitution'of 1890, with the • important addition as to improperly loaded cara. It is insisted that under the authority of Buckner v. Richmond & Danville R. R. Co., 72 Miss. 873, 18 South. 449, the question of contributory negligence should have gone to the jury. This contention is based on the language employed on page 878 of 72 Miss, and page 450 of 18 South., where it is said: “The Constitution did not have the effect to free employes of railroad companies from exercise of ordinary .caution and prudence. It does not license recklessness or carelessness by them, and give them a claim to compensation for injuries thus suffered. They, like others not employes, must not be guilty of contributory negligence, if they would secure a right of action for injuries. The fact of knowledge of defects shall not be, as heretofore, a •defense; but the same rule that applies to others applies to them. They must use the degree of caution applicable to the situation; for the absence of this is negligence, and, if it contributed to the injury, no 'recovery can be had by an employe, any more than by one not an employe.- It was not the purpose of the makers ■of the Constitution to place employes on a more favorable footing as to this than others', but simply to free them from the bar [48] before held to arise from the fact of knowledge of defective conditions. It is not a defense, but it is a fact or circumstance for consideration, among others, in order to determine the presence or absence of contributory negligence, which is yet a defense, as it was before, but is not to be made out against an employe by the mere fact of his knowledge.” In connection with this holding it is proper to consider the later case of Railroad Company v. Parker, 88 Miss. 193, 40 South. 746, in which it is said that the established rule is: “If, knowing the unsafe, defective, or dangerous condition, the complaining, employe be proven guilty of reckless negligence in the use of the appliance at tire time of the injury, he cannot recover.” It is further said in this case that, in case there is a conflict in the testimony, the question of contributory negligence is one for the jury. But surely it must be true that there must be some proof of recklessness, or at least imprudence, before the court is warranted in submitting this phase of the case to the jury. In the case under consideration the most painstaking and repeated examination of the record fails to disclose any proven fact or circumstance which even tends to show recklessness, indifference to danger, or carelessness on the part of the appellee. It is true that he testifies to his knowledge of the defective loading of the car; but if such knowledge is to be permitted to defeat a recovery, even at the hands of a jury, the constitutional provision is absolutely worthless. True it is, as announced in the Bucliner case, that section 193 of the Constitution does not abolish the defense of contributory negligence; but the railroad company in order to* avail itself of the defense, or even to go to the jury on the question, must show in some way that something more than mere km wledge of the defects contributes tcf the injury. One injured cannot contribute to the injury by the usual, prudent, and careful use of such appliances as the railroad furnishes, even when such appliances are known to be defective. The employe must be careful in the use of these defective appliances. It may be that the very fact that they are [49] known to be defective requires a higher degree of care than Avould be demanded if all the agencies were perfect in construction ; but when an employe is directed by his superior officer to make use of defective appliances, and in obedience to such command uses such machinery in a prudent and careful manner, observing such precautions as the nature of the situation demands and permits, and is injured, the railroad cannot be heard to set up the doctrine of contributory negligence, unless the injured person heedlessly exposed himself to a peril so obviously imminent as to render his conduct careless to the point of recklessness. But, there is no proof in this case which brings the case under the operation of this rule. The car was loaded in the usual way, in a manner which had long prevailed in the yards. This appellee had never seen lumber so loaded fall from the car. It Avas his duty to attend to the switching of the car, and catch the running board of the switch engine in order to go with the engine. Had he refused to go between the defectively loaded car and the piles of lumber on the side, he would have been forced to go around these piles of lumber and thereby lose the chance to catch the running board of the engine, and so be negligent in his duty. In short, there was no sort of proof upon Avhicli the jury could have upheld a finding that the unfortunate brakeman recklessly or even carelessly exposed himself to a knoAvn and imminent peril; and for this reason we think the instructions on this question were properly refused. In the light of the testimony as to the serious injuries sustained,' and the probability of their being either permanent or remediable only by the successful termination of a very serious operation, we cannot say that the damages are so excessive as to Avarrant interference by this court. Louisville, N. O. & Tex. R. R. Co. v. Thompson, 64 Miss. 584, 1 South. 840. Affirmed.