Yazoo & M. V. R. R. v. Houston

Cook, P. J., delivered the opinion of the court. The appellant .relies on Pedersen v. Railroad Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, for a reversal of this case. The appellee stands behind Railroad v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902, 59 L. Ed. 1397. It is insisted by appellee that all of the decisions of the supreme court since the decision in the Pedersen and Yurkonis Cases clearly indicate that the supreme court has intended to limit the influence of the Pedersen Case rather than to extend it. Whether this be true or not is not for us to say, but since appellant stands squarely upon the Pedersen Case, saying, “If this case is sound, this case must be governed by [897] the federal act,” we will examine the Pedersen Case and its applicability to the present case. The gist of the Pedersen Case, as interpreted by appellant’s briefs, is that Pedersen was “engaged in the repair of an interstate highway,” and for this reason he was “employed in interstate commerce.” This analysis of the Pedersen Case seems to be sound, but it seems to us that the supreme court of the United States, in the Yurkonis Case drew in the lines somewhat, by holding that Yurkonis did not bring himself within the federal act. He was mining coal intended to be used in interstate commerce, but the manner of receiving the injury was too remote to justify the conclusion that he was employed in interstate commerce. A consideration of the facts developed .upon the trial of the instant case, taken most favorably for appellant, indicate that the deceased was employed in mining-gravel for the ultimate repairing or building of the highway over which the interstate commerce of the railroad would be operated. Yurkonis was employed in mining-coal to be used by the carrier to make steam power for the transportation of its commerce between the states, and yet the Supreme Court said: “The manner of the receiving of the injury by plaintiff showed conclusively that it did not occur in interstate commerce. ’ ’ May we not say the same about Mr. Houston? It seems to us that the character of the work and the manner in which the injury was received in the Yurkonis Case and in the present case are strikingly similar. On the other hand, Pedersen was working directly upon the highway, and received his injury by a train operated on the highway. So, as we interpret the situation, this case is controlled by the principles of the Yurkonis Case. We do not believe that the record shows that there was no negligence on the part of the defendant below, but, on the contrary, the jury were warranted in finding against the defendánt on this issue. [898] The evidence in the case does not make a case for the application of the assumption of risk doctrine, nor do we think the evidence shows that decedent knew and appreciated the danger. We find no error in the proceedings below, and the judgment will be affirmed. Affirmed.