Ellis v. Bear Creek Mill Co.

HoldeN, J., delivered the opinion of the court: Appellant Jesse Ellis, sued the appellee, Bear Creek Mill Company a corporation operating a logging railroad by steam agency, for 'personal injuries received while assisting in the loading of one of ap-pellee’s logging cars. After the plaintiff below had introducted all of his evidence the court granted a peremptory instruction to find for the defendant, from which action this appeal is prosecuted here. The facts ■of the case presented by the plaintiff in the court below are substantially as follows: Appellee, Bear Creek Mill Company, owned and op-orated a sawmill near the town of Leaksville, and in ■connection therewith owned and operated a logging railway over which timber was hauled to its mill. Cars and engines propelled by steam were operated over this logging railway; the logging cars were loaded by means ■of a steam loader commonly used in loading sawed logs. The loader was connected with a derrick and suspended wire cables, at the end of which were attached steel tongs that were used to grip the logs and raise them from the ground, or from a wagon alongside the track, and place them upon the car; steam power being used for the purpose. The" appellee used wagons drawn by oxen to bring the logs from the woods to its tracks, there to be -loaded by means of the steam loader onto the cars and then transported over appellee’s logging railway to the sawmill plant or to some other point: The appellee had established alongside its tracks certain landings at. which logs would be unloaded ordinarily from the wagons onto the ground, and that afterwards, — 755 — ■when the car would be placed at the landing, the logs would be loaded onto the ear by means of the steam loader. It appears that whenever there were only a few logs lying at the landing at which a car was being loaded, and the log wagons arrived at the landing with their loads, it was the custoin of the appellee to “tong” the logs direct from the wagon and lift thein from the wagon directly onto the cars instead of dumping the logs from the wagons to the ground and then loading them on the cars. The landing at the point where appellant was injured was a piece of ground that slanted toward the railroad track, which necessarily caused a wagon to incline when standing unloading logs at this landing. ■ The appellant, Ellis, was an employee of the appellee ■corporation and was known as a “tonger;” his duties required him under his employment to fasten the tongs, which were attached to the wire cables on the loading machine, to the logs in order that the logs could be then hoisted by means of the' derrick and the steam loader onto the log cars of the appellee. At’the time of the injury appellant and others of the loading crew were engaged in loading one of the cars of the logging train which had been placed, as a part of the train, ' alongside the landing referred to, and which was drawn by a steam engine, when and where one Hub Box, an employee of the appellee, who was driving a team regularly for appellee, drove his ox team and loaded log wagon up to and alongside the landing; the wagon was loaded with logs and there was one log lying upon the top.of the load which was held onto the wagon by means of the loading chain which was fastened about the logs and to the wagon on the driver’s side. The bed of the wagon, was loaded with three logs, which were held on the wagon by short bumpers. Two logs were then on top of the three logs, and one log on top ■of the two logs, making the logs fit rather in a pyra — 756 — mid shape, and around this was fastened the chains to hold the logs securely while being hauled from the woods to the track. Appellant at the time was tonging* a - log from the landing under the direction of a Mr. •Mizzel, an engineer of appellee, and as he fastened the tong to the log and gave the signal to the engineer while facing the loader, Box unfastened or unloosed the chains which held the top log on the wagon thereby releasing-the log and permitting it to roll off of the wagon. Appellant, with his back to the wagon and ignorant of what was going on behind him and before he knew it, was struck in the back by the falling log, from which he suffered serious bodily injury. The appellee contends that the peremptory instruction given for the defendant below was warranted upon the facts of the case for two reasons: First,, because appellant’s injury was not caused by a fellow servant engaged at the time in the hazardous employment of operating the cars of appellee railroad; second, that the injury was not caused by the negligence of Box, the employee of appellee and fellow servant of apnellant, Ellis. Box was undoubtedly an employee of appellee and a fellow servant of appellant Ellis. At the time of the injury he was performing the duties of his employment, which were to haul logs upon appellee’s wagons from the woods to the railway track of appellee, where they would be loaded upon the cars |o be transported to some other point on the railroad. His duties required him to properly load and haul the logs to certain established landings near and alongside the track and there unload them on the ground, to be afterwards loaded in cars by means of steam derrick and tongs, or where frequently the logs would be tonged and lifted directly from the wagon to the car, which was done in this instance. Box had six logs on his wagon to- be loaded upon the car which was being loaded by appel — 757 — lant. Appellant was engaged about his duties loading the ear under the direction of a superior officer, and while he was facing the loader with his hack to the wagon Box placed the loaded wagon alongside the landing by the car that was being loaded by appellant, who was standing on the ground near the wagon and the car. After the loaded wagon stopped Box unloosed the chains which were fastened around the logs to hold them securely on the wagon, so that the logs could be loaded upon the car either by lifting them directly from the wagon to the car with the steam loader, or if no car had been there waiting then the logs would be unloaded onto the landing alongside the track to be subsequently loaded upon the cars. When Box unloosed the chains which were fastened around the logs to hold them securely upon the wagon, the top log rolled off to the ground and struck appellant, Ellis, in the back and severely injured him. We understand the contention of counsel for appellee is that, while Box was a fellow servant of the appellant, Ellis, and was an employee of a corporation operating a railroad by the dangerous agency of steam, within the meaning of chapter 194, Acts of 1908, still the appellant, Ellis, cannot recover in this case because his injury was not due to the negligence of a fellow servant engaged at the time iin the hazardous employment of operating the cars of the appellee logging railroad company. In other words, the contention of counsel for appellee is that Box was a mere log hauler, whose business was simply to haul logs from the woods to the tracks of appellee and there unload them, and then his duty was at an end; that therefore in doing this work he was at no time engaged directly or indirectly in the operation of the cars of the appellee railroad company, and appellant, Ellis, cannot recover for the negligence of a fellow servant who was not connected with the operation of the railroad. — 758 — We here set out section 1, chapter 194, Laws of 1908 r “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 him from the act or omission of such railroad corporation .or others, or their employees, as are allowed by law to other persons not employed. ’ ’ In passing upon this' question, we do not think it necessary for us to go any further at this time than to say that under chapter 194, Acts of 1908, as construed by this court in Hunter v Ingram-Day Lumber Co., 110 Miss. 744, 70 So. 901, and where a similar statute was construed in Railroad Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675, the appellant, Ellis, was injured while engaged in and about the operation of the appellee’s logging railway operated by the dangerous agency of steam. The law is well settled that the loading of logs upon one of appellee’s cars to-be transported to some other point was such employment as to make the appellant engaged in the operation of the road. While the appellant was thus engaged in the operation of the railroad he was injured by the negligence of Box, a fellow servant, who may have-been engaged about a different piece of work or in another department of ..labor from that of the appellant, yet Box was performing one of the duties incidental' to the operation of the railroad;- and while this fellow servant Box may not have been assisting directly in the loading of the cars, and for that reason was not engaged in operating the railroad, still his employment was closely connected with that of appellant, and his negligence was one of the risks and perils incident to the employment of the appellant, Ellis, in loading the — 759 — logs upon tlie appellee’s cars. For that reason we think there can be no question about the case of appellant coming within the Act of 1908, chapter .194. There is no occasion for us to decide the question now as to whether or not the fellow servant Box was actually engaged in loading the logging car at the time' of the injury. Nór do we decide whether under the' statute appellant could recover in a case where he was injured by the negligence of a fellow servant regardless of the character of employment of the fellow servant. We may point, out, however, that when Box placed the wagonload of logs at the landing so that they might be loaded upon the car, and when he unloosed the chains which fastened the logs together so that the-loading of the logs into the ear could be accomplished,, either directly from the wagon or from the ground, there arises from the’.facts a serious question as to whether or not Box was actually employed at the time' in loading the car, and thus engaged in the hazardous employment of operating the railroad propelled by thn dangerous agency of steam; or whether that fact could make any difference if appellant alone was in the designated class of railroad employees and was injured by a fellow servant, is a question equally as serious. On the second contention made by the appellee, we-cannot see much room for discussion of the point. We are clearly of the opinion that under the facts shown by the plaintiff, that is, that Box drove the wagon up to the ianding and unfastened the chains holding the logs, knowing, or. should have known, that the appellant and the other employees were near the wagon and the car, and also knowing the slanting condition of the ground, and the condition of the logs on the wagon, a question of fact is presented for the determination of the jury as to whether or not Box was negligent, in whether he knew, or should have known, that when — 760 — lie unloosed the chain the top log would roll oft onto the appellant and injure him. The lower court erred in granting the peremptory instruction to the defendant, and for this error the judgment of the lower court will he reversed and the case remanded.- Reversed and remanded.