Yazoo & M. V. R. R. v. Dees

Smith, C. J., delivered the opinion of the court This is an- appeal from a judgment for damages alleged to have been sustained by the appellee while in the employ of the appellant by reason of its negligence. In September, 1914, and for some years prior thereto, the appellee Avas in the appellant’s employ as an engine foreman in the appellant’s yard at Vicksburg, charged with the duty of “making up all trains . . . that had to be switched in the Vicksburg yards.” There are fifty-two switch tracks in this yard, each controlled by a lever extending from the track to a switch stand about six feet therefrom. On the top of each — 462 — of these stands is an oil lamp. These switch stands, including the lamps on the top thereof, are about three feet high. The lamps which burn oil are inspected each day by an employee of the appellant whose duty it is to keep them filled with oil and burning. Two of the opposite sides of each lamp are of green glass, and two are of red, so that on two sides the light therefrom appears green, and on the other two red, indicating according to the direction in which they are turned whether the switch is open or closed. The appellee is an expert switchman, was familiar with the appellant’s yard, and knew the location of each swritch therein. On the early morning of September 14, 1917, while it was yet dark, he stepped off of a slowly moving car of an interstate train which his crew was then engaged in switching in order to signal the engineer, and, after taking about two steps, fell over the stand of switch No- 6, the lamp of which was not burning, and was injured. The appellee passed this switch stand a short time before he was injured,' and the lamp thereon was then burning, though this fact seems not to have attracted his attention; the switch having been turned by another member of the crew. The employee of the appellant in charge of the switch lamps testified that he inspected, filled, and lighted the lamp of switch No. 6 the day before the appellee was injured. One of the members of appellee’s switch crew testified that he examined this lamp immediately after appellee fell over it, and that it had no oil in it. The appellee had a small lighted lantern at the time he was injured, but stated that he was not .using it to locate the switch stand, but was intending to use it in signaling the engineer, and that his failure to see the switch stand was caused by the absence of the light which should have been burning thereon. There was evidence, and the appellee admitted, that these switch — 463 — lamps would occasionally go out without fault on the part of' the appellant or of the person in charge thereof, and that when the going out of a lamp attracted, the attention of a member of the switching crew he would relight it both for his own protection and that of ths appellant. At the close of the evidence, the presiding judge announced that all of the issues involved in the case could be set forth in not exceeding eight instructions for each side, and that he would not consider a greater number if tendered him. He passed on eight instructions, in addition to a request for a peremptory instruction, tendered him by the appellant, but declined over the appellant’s objection to consider several other instructions tendered him by it, which instructions were afterwards embodied in a bill of exceptions. The errors assigned bring under review: (1) The refusal of the appellant’s request for a peremptory instruction; (2) the granting of the appellee’s first and second instructions: (3) the refusal of the appellant’s sixth, seventh, and eighth instructions; (4) the refusal of the court below to pass on more than eight instructions tendered by the appellant; and (5) the amount of the verdict. First. The ground on which the appellant sought to obtain a peremptory instruction is that the going out of the switch light was one of the ordinary risks of the services in which the appellee was engaged, and consequently was assumed by him when he entered the appellant’s employ. The risks which a servant may incur in any employment fall naturally into one or the other of two classes: First, the ordinary risks of the service, that is, those which are not created by the master’s negligence and which remain after he has used due care to remove them; and, second, the extraordinary risks or those which are created by the master’s negligence. — 464 — It'is probably a universal rule that the servant merely by entering the service of the master assumes the ordinary risks of the service, and if he is injured solely because of them he cannot recover. But at common law, and under the federal Employers’ Liability Act (U. S. Comp. St. sections 8657-8665), which controls here, risks created by the master’s negligence are not assumed by the servant unless with an actual or constructive knowledge thereof ahd appreciation of the danger therefrom he voluntarily enters or continues in the employment of the master. In the case at bar, the appellee assumed the risk of the switch lamps going out without fault on the part of the appellant; but his complaint here is, and the jury believed, that the lamp of the switch stand over which he fell went out because the appellant’s employee in charge thereof negligently failed to keep it filed with oil, so that the question of whether or not the appellee assumed the risk thereof cannot arise unless he had, before he was injured, either actual or constructive knowledge of the fact that the lamp was out, and whether he had this knowledge, construing the evidence most strongly for the appellant, was a question for the determination of the jury. The request by the appellee for a peremptory instruction was properly ■refused. Seaboard Air Line Railroad v. Horton, 233 U. S., 492, 34 Sup. Ct., 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. Second. The appellee’s instruction No. 1 is as follows: “The court instructs the jury for the plaintiff that if you believe from the testimony in this case that the defendant company negligently failed to have the switch light at No. 6 switch lighted on the morning of September 14, 1917, and further believe from the evidence ■that because of such failure on the part' of the defendant to have such switch lamp lighted and as a proximate and direct result thereof plaintiff was injured, unless he knew of this condition, or by the use of — 465 — ordinary diligence could have known of the danger before he. was injured, then you find for the plaintiff and assess his damages in such sum as you believe the evidence justifies, not to exceed the sum sued for.” The appellant’s objection thereto is that it violates the rule “that the master’s duty in respect to his instrumentalities is restricted to seeing that they are reasonably safe for the performance of the functions for which they are designed,” for the reason that the lights were placed on the switch stand by the appellant, not for the purpose of enabling its employees to locate the switch stands, but for the purpose of indicating whether the switches were open oir closed. One answer to this contention, assuming for the purpose of the argument that the use for which these lights were intended by the appellant is material, is that, while it may be that the primary purpose for which the lights were placed on the switch stands was to indicate whether the switches are open or closed, it appears also from the evidence that this was not the sole purpose they were intended to serve, but another was that the location of the switch stands might thereby be disclosed to the appellant’s employees at work in the yard. But the use for which these lights were intended by the appellant is not here controlling. The appellant’s switching crews in the discharge of their duty must necessarily walk between the tracks in its yard, so that it was the duty of "the appellant to exercise reasonable care, to keep the space between these tracks reasonably safe for that purpose. These switch stands unmarked by lights would undoubtedly be a menace to the safety of these switchmen on dark nights, because of their liability to fall over them as did the appellee in the case at bar, though it may be that if they had never been marked by lights their presence between the tracks would only have added to the care which the switchman must observe in walking between the tracks at night, as to — 466 — which we' are not now called upon to express an opinion, for the obstructions which the appellant placed between the tracks were not mere switch stands, but switch stands on which there were lights which it proposed to keep constantly burning and to avoid which less care was required on the part of its employes than would have been rquired of them to avoid unlighted switch stands. The lights were integral parts of the switch stands, and the appellant’s employees would naturally associate one with the other and trust to the lights in locating and avoiding the switch stand. The placing of the lights on these switch stands by the appellant whatever its primary purpose in so doing-may have been, was in effect an invitaton to its employees to use them for the purpose of locating and avoiding the switch stands, a use for which they were suitable and to which from their very nature the appellant must have known its employees would put them. It follows, therefore, that the appellant’ by placing the lights on the switch stands became charged with the duty of exercising reasonable care to keep them burning, so that its employees would not be misled by their absence in locating and avoiding the switch stands. The appellee’s instruction No. 2 is in accord with our views of the law as hereinbefore set forth in discussing the appellant’s request for a peremptory instruction, and is therefore correct. Third. The appellant’s instruction. No. 6 was properly refused, one sufficient reason therefor being that it was sought thereby to charge the jury, when the law is to the contrary, that an employee assumes a risk created by his employer’s negligence merely because he had as good an opportunity as his employer of knowing of its existence. No error wras committed in refusing the appellant’s instruction No. 7, for the substance thereof was given in chárge tó the jury over and over again for both — 467 — sides; that is, that a recovery by the appellee depended upon his having fallen over the switch stand because the lamp thereon was not lighted. The appellant’s instruction No. 8, was also properly refused because of the erroneous charge therein that — If the plaintiff “had been working in the yards where such switch was located and knew that such switch stand No. 6 was there and had known if for years prior to the alleged accident, then plaintiff assumed the risk of such danger, if any there was from said unlighted switch.” The appellee admitted knowing the location of all of the switches, but the trouble here is that he fell over the switch stand in the dark not knowing that he was then iu its vicinity, which fact would have been disclosed to him had the lamp been burning. Fourth. Trial courts are required to, and should only, grant instructions sufficient in number and character to guide the jury in determining the issues involved in the case on trial, and they have the right to limit the number of instructions to be considered by them accordingly. Mabry v. State, 71 Miss. 716, 14 So. 267; Waldrop v. State, 98 Miss. 567, 54 So. 66. This number cannot be an arbitrary one applicable to all cases alike, but must depend in each case upon the number of issues therein involved. In the case at bar the five instructions granted the appellant fully covered all of the issues it was entited to have submitted to the jury; consequently, the court committed no error in declining to pass on the others tendered to it. Fifth. The appellee, as a result of his injury, is suffering from a double hernia which will be permanent .unless relieved by an operation which may or may not be a success, and which, according to the evidence, will be attended with danger to life. He is still suffering-pain at intervals, is compelled to wear a truss with — 468 — its accompanying inconvenience and Ms capacity for work has been materially reduced. T3ie verdict of fifteen thousand dollars which is claimed by the appellant to be excessive, is large; but on tlie evidence we cannot safely say that it was the result of passion, prejudice, or corruption on the part of the jury. Affirmed.