New Orleans & N. E. R. v. Penton

Anderson, J., delivered the opinion of the court. Appellee, M. B. Penton, sued appellant, New Orleans & Northeastern Railroad Company, in the circuit court of Pearl River county for damages for a personal injury received by him while engaged about his duties as brakeman employed on one of appellant’s local freight trains, and recovered a judgment from which appellant prosecutes this appeal.' The ground of liability upon which appellee relied, and upon which it is sought to sustain the judgment in his favor in this court, is that appellant breached its duty to furnish him a reasonably safe place in which to perform the duties of his employment and in ordering him to do his work in such unsafe place. Both appellant and appellee, at the time of appellee’s injury, were engaged in interstate commerce; therefore it is unquestioned that this case is governed by the federal Employers ’ Liability Act (U. S. Compiled Statutes, sections 8657-8665).’ Appellee was engaged at the time of his injury in switching cars in the plant of Southern Lumber & Timber Company at Hillsdale in this state. While so engaged a large piece of timber was thrown, presumably by some employee of the said lumber company, onto a — 579 — ramp adjoining the spur track on which appellee was at the time engaged in his employment, and in some way the timber slid off the ramp, falling on appellee’s head. Appellant defended on the ground that it was guilty of no negligence which caused appellee’s injury, that the place at which appellee was engaged in his employment was a reasonably safe place for the performance of his duties, and, furthermore, that if the place was in fact unsafe, appellee had full knowledge thereof and assumed the risk incident thereto. At the conclusion of appellee’s evidence, appellant, conceiving that no case of liability 'had been made out, moved the court to exclude appellee’s evidence and direct a verdict for appellant. This motion was overruled. The case thereupon went to the jury under the instructions of the court and resulted in a verdict and judgment for appellee for thirty thousand dollars. Appellant contends that a verdict should have been directed in its favor on several grounds. In view of the conclusion the court has reached, it is only necessary to discuss one of those grounds, namely, that there was not sufficient evidence to go to the jury on the question of appellant’s negligence. Under the federal Employers’ Liability Act, there is in this case neither statutory nor common-law presumption of negligence upon which appellee can rely. Negligence is the basis of liability under the act, and in the absence of negligence on the part of the railroad company or its employees, the railroad company is not a guarantor of the safety of the place of work; the extent of its duty is to see that ordinary care and prudence are exercised to the end that the place in which the work is to be done may be reasonably safe; the injured employee must prove the existence of the defect complained of; he must show that the place was unsafe as the result of a negligent failure of the railroad company to do its duty in respect thereto. Roberts’ Federal Liabilities of Car — 580 — riers, vol. 1, section 528; Y. & M. V. R. R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817. Treating appellee’s evidence as proving every material fact ■ which it proves or tends to prove, directly or inferentially, as should he done in determining whether appellant was entitled to a directed verdict, the following case was made out: As stated, there was only the evidence introduced on behalf of appellee; appellant offered none, and there are no material conflicts in the evidence. Appellee had been engaged in the employ of appellant at intervals for about eighteen years. The most of that time he had spent on work of the character of that in which he was engaged when injured. At the time of his injury he was braking on one of appellant’s local freight trains which switched all the lumber mill plants along the line of its route; this local freight train was at the time of appellee’s injury switching the plant of the Southern Lumber & Timber Company. Most of the train had been left on the main line. The engine pulling the train backed south into the spur track which led into and served the east side of the said lumber mill. Having completed its work on that side, it moved several cars over on the track leading along the track serving the said lumber plant on the west side, being the track where appellee was injured. The engine was backing south into this spur track pushing five or six cars behind it. The conductor in charge and appellee left the caboose attached to' the train where they had been riding, and walked over to where a dirt road crossed the track on which the accident happened, while the rest of the train crew accompanied the engine and cut of carsi This crossing was several hundred feet north of the point where appellee was injured and north of the plant of the lumber company. While appellee and his conductor were at this crossing awaiting the-approach of the cut of cars, appellee asked the conductor what was to be done in the way of switching the lumber mill, in response to which the conductor showed him a list of cars — 581 — to he switched at that point and directed him to go and adjust the couplers and pull Out the loaded cars shown in the list. Appellee on foot preceded the cut of five or six cars which were backed onto this spur track and had adjusted the knuckles on one or two cars before he reached the point where he was injured. He was standing, according to his own testimony, with his hand on the ladder on the end of a car. The approaching cut of cars was something like one hundred fifty feet from him. He was standing between the ramps of said lumber company and the railroad track. Suddenly without warning a large piece of timber came hurtling down the ramps and struck appellee on the head, causing the injuries for which he sued; neither appellee nor any one else who saw it knew where the piece of timber came from. It is not shown that any of appellant’s employees threw it down on the ramps, the presumption from the evidence being that it was either thrown down by some employee of the lumber company or some intermeddler. Bordering on the side of this mill plant there were a series of lumber ramps placed there and owned by the lumber company for loading lumber onto appellant’s cars. As these ramps approached the railroad track, there was a decline of from six to ten per cent. The ramps were about thirty feet long with a total slope of something like two feet in that distance. They were constructed of large timbers, six by eight inches. The skids or stringers on which the lumber rested were laid at right angles to the railroad track and rested on caps or sills running parallel with the railroad track, which in turn were supported by upright timbers. These ramps were constructed from eight to ten feet above the level of the railroad track at the lower end and about two feet higher at the upper end. At the upper ends of these ramps and substantially equidistant from the two spur tracks which served the plant of the said lumber company on the east and the west sides and parallel with them, there was a “deal track” which was part of the — 582 — equipment of the lumber company on which the dollies or deal cars loaded with lumber were hauled to points along these ramps and unloaded thereon and in turn loaded therefrom into appellant’s cars. The lumber company would unload the lumber from these dolly cars onto the ramps pushing or sliding the pieces of timber down toward the lower ends so as to place them in convenient position for loading into appellant’s cars. The method provided by the lumber company according to the evidence of appellee’s witness Netterville, for stopping the lumber at the lower ends of the ramps, was to place pieces of lumber in an upright position behind the caps or sills of the ramps. This method, he testified, was effective in keeping the lumber from falling off of the ramps, and that the lumber company made it a practice to place these stops in position before any lumber was put on the ramps. This evidence was uncontradicted. Appellee’s case comes to the proposition that the place he was furnished to perform his duties was unsafe because the lumber company had failed to provide stanchions for its ramps, resulting in the piece of timber that struck appellee rolling off the ramps, which condition appellee argues appellant knew, or could have known by reasonable care. It is doubtless true that if stanchions had been in position at the foot of the ramps where appellee was injured, the piece of timber which was thrown out onto the ramps and fell off and caused his injury would have been caught by the stanchions and held in position, and therefore would not have fallen off and injured appellee. Appellee’s evidence showed that an effective method of constructing ramps in a lumber mill plant like the one here involved was to provide in their structure for stanchions to catch the lumber when thrown on them, and that no such provision was made in the construction of these ramps. However, app.ellee’s evidence also showed that the method adopted by this lumber company of using pieces of timber placed inside of the stringers or — 583 — caps of the ramps was equally effective with the other method. Appellee as a brakeman for appellant for some years before his injury was engaged on this local freig’ht train, which did the switching at the plant of said lumber company; it was everyday business with him. Appellant neither owned nor controlled the lumber company. There was no evidence that such an occurrence as took place when appellee was injured had ever happened before; there was no evidence that the employees of the lumber company or any one else had ever on any other occasion thrown any lumber onto these ramps without the stanchions being in place; there was not a particle of evidence tending to show that appellant had any reason to believe either from the manner of the construction of the ramps or their proximity to its tracks, or the use which had been made of them by the lumber company in the past, that the injury which did occur or in fact any injury whatever might reasonably be expected to occur in the operation of said mill plant. It was simply a situation which resulted in an injury to one of appellant’s employees which appellant by no reasonable human foresight could have anticipated. The place furnished appellee by appellant was perfectly safe except for the intervention of an independent unforeseen agency, and under the law appellant is not responsible for the results. We are of the opinion, therefore, that the court should have directed a verdict for appellant. Reversed, and judgment here for appellant. Reversed.