J. J. Newman Lumber Co. v. Ferrell , 130 Miss. 648 ( 1922 )

Cook, J.,

delivered the opinion of the court.

The plaintiff, Jim Ferrell, instituted this suit against the J. J. Newman Lumber Company, defendant, for damages'for personal injuries sustained by him while employed by defendant, and from a judgment for plaintiff for the sum of two thousand dollars this appeal was prosecuted.

The defendant offered no testimony, and the facts established by plaintiff’s evidence are substantially as follows: The appellee was employed by appellant as a laborer in a steel gang or crew engaged in constructing and repairing the track of appellant’s logging railroad. The appellant furnished this crew with a work train consisting of cars and a locomotive propelled by the agency of steam, and appellee worked on and about this train at all times. As a part of the equipment of this work train, there was a flat car on which was stationed a'device known as a “rail machine,” which was likewise propelled by steam. At one end of the flat car on which this rail machine was located, there was an appliance or attachment which extended from the floor of the flat car down to the rails of the railroad track. This appliance carried revolving endless chains, which Avere likeAvise operated by steam, and it was used to load cross-ties and rails onto the flat cars. The cross-ties were stacked in piles along the right of way near the railroad track, and in loading them on the flat cars it became necessary for certain employees to carry these ties, one at a time, and place them on and across the rails of the track, while two other employees stood at the foot of these revolving chains, one employee on each side of the track, to pick up the ties from the rails and place them on these chains by which they were carried up onto the flat car. The rail machine and cars were attached to a locomotive by which they Avere sloAvly moved along the track so that the foot of these chains or loading device would be constantly near the ties as they Avere placed on the rails ahead of the train.

.On the occasion when the appellee was injured he was engaged at work at the foot of these revolving chains, and it was Ms duty to move with the train along the railroad track on one side thereof, and, in conjunction with his working partner on the other side of the track, to pick up the cross-ties from off the track and place them on said-chains. Two other employees in this crew of workmen were engaged in picking up the cross-ties piled along the right of 'way and in carrying them to, and placing them across, the track so that the appellee and his partner could then place them on the said chains. While the appellee was thus engaged in the discharge of his duties, the two employees who were placing the ties on the track negligently threw a cross-tie onto the track so that it caught appellee’s hand between the end thereof and another tie which appellee was then loading onto the rail machine, and as a result appellee’s hand was badly crushed and mangled.

The appellant seeks a reversal of this case upon three grounds, all of which in the final analysis resolve themselves into the one contention that, under the facts above stated, the appellee is not entitled to recover from appellant for injuries sustained on account of the negligence of a fellow servant.

We think this contention of appellant is foreclosed by the cases of Hunter v. Ingram-Day Lumber Co., 110 Miss. 744, 70 So. 901; Lockman v. A. & V. R. Co., 116 Miss. 772, 77 So. 793; and Ellis v. Bear Creek Mill Co., 117 Miss. 742, 78 So. 706.

Chapter 194, Laws of 1908 (Hemingway’s Code, section 6684), provides:

“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 oi such railroad corporation or others, or their employees, as are allowed by law to other persons not employed.”

It cannot be doubled that appellee was injured while engaged in and about the operation of appellant’s logging railroad. He was required at all times to work in and about' this train of cars, and at the time he was injured he was engaged in the actual work of loading cars to be transported to points along the line of railroad, and which were at that time being operated and moved by the dangerous agency of steam. His co-laborers who were placing the cross-ties across the track, and within appellee’s reach, were performing duties incidental to the operation of the railroad and the loading of cars; in fact, they were performing a necessary part of the work of loading cars, and if it can be said that these employees were not engaged directly in loading the cars, still they were performing duties so closely connected with those of appellee in loading these cross-ties upon the appellant’s cars that their negligence was one of the risks and perils incident to such employment, and we think this case comes within the provisions of chapter 194 of the Laws of 1908.

In the case of Hunter v. Ingram-Day Lumber Co., supra,, it was held that it is not necessary in order for a person to recover under the terms of the fellow-servant statute of 1908 that such person be injured by the actual running or movement of the cars; the court there using the following language: *’

“The entire system that appellee had in operation at the time the appellant was injured was an arrangement to load cars that were propelled by steam and run on tracks, and the plaintiff at the time of his injury was engaged in loading one of appellant’s cars on the railroad in question. It is not necessary in order for a person to recover under the terms of the fellow-servant statute of 1908 that such person be injured by the actual running or movement of the cars. The legislature, acting within its discretion, has determined that all persons working in and about the operation of railroad'trains are engaged in a hazardous business and are entitled to the protection afforded by the statute in question. All work in and around the operation of railroad trains is necessarily dangerous, whether that work has to do with the movement of cars or the loading of same, or any other employment in the operating department of a railroad.”

The case of Ellis v. Bear Creek Mill Co., supra, is a case in which the facts are very similar to the facts in the present case, and the Court there said:

“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 logs upon the appellee’s cars. For that reason w.e think there can be no question about the case of appellant coming within the Act of 1908, chapter 194.”

It follows from the views herein expressed that the judgment of the court below must be affirmed.

Affirmed.