Illinois Central Railroad v. Daniels , 73 Miss. 258 ( 1895 )

Cooper, C. J.,

delivered the opinion of the court.

Upon the showing made by the appellee himself, the court should have instructed the jury to find for the defendant, for the reason that the injury sustained by the plaintiff resulted from his putting the appliance supplied by the defendant in an improper manner to a use for which it was not intended.

A large plow, to be pulled along the tops of the cars, and drawn by a wire cable attached to two engines, was used by the company to unload earth from the cars. When the train was at work around a curve, shives or ground wheels were used, which were fixed to the inside of a car or cars between the plow and the engines, and which gave direction to the force of the cable. These shives were attached to the inner side of the car which was on the outside of the curve, and were used, as the plaintiff testified, only on the curves, when the cable could not otherwise be kept in the middle of the car.

On the occasion of the injury, the cable had been used in working around a sharp curve, and a part of it, forming the chord of the arc of the road, had become submerged in water adjacent to the roadbed to the depth of several feet. An effort had been made by the laborers to put the cable on the cars by hand, but because of the water this could not be done. In fact, the cable had lodged against a stump under the water, but this was not known to the plaintiff, who was in charge of the work. He directed the engines to move forward, for the purpose of lifting the cable from the water, having first put a part of it over the stanchions of one of the cars. As the engines moved forward, the plaintiff noticed that the cable began to tighten before it straightened from the plow to the engine, and, realizing that it was caught against some obstruction under the water, he gave the signal to the engineer to stop the engines, which was seasonably done; but before the engines could be stopped, the side of the car, over the stanchions of which the cable had been put, gave way, by reason of a rotten sill, which flew out, and it or the cable broke the plaintiff’s leg in two places.

The plaintiff testified that the crew and train were under his control; that no instructions had been given him as to how the •cable should be loaded on the cars, but that he had before loaded it in the same way, which was ‘‘a good way. ’ ’ The plaintiff further testified that if the sill of the car had been sound, it would have stood the strain on it, and the plow would have moved forward. Another witness for the plaintiff said that if the sill had been sound the plow would have moved forward or the car would have turned over.

A witness for the defendant testified that he afterwards examined the stump to which the cable had caught, and found that the cable had cut into it to the depth of two or three inches.

The plaintiff described the shive used on the train as being ‘ ‘ a wheel with a grooved edge, that is put in an iron frame, which we use to keep the cable in line with the train, and when we go to work on a curve we fasten these shives to the opposite side of the cars on the outside of the curve. The shive is after the pattern of a well pulley. It has • a groove in the wheel that will contain the cable, and is made especially for that purpose. ’ ’

It may be conceded that, but for the defective sill, the injury would not have resulted. The defendant, however, is not liable merely because the machinery was defective and its servant was thereby injured. If the cars were sufficient for the work they were supplied to perform, executed in the manner directed by the company, and the plaintiff put them to another use, or used them in a manner not in the fair and reasonable expectation of the defendant, and, in such use, injury resulted, the defendant is not liable, even though the defect in the car contributed thereto.

The principle from which the liability of the master to the servant springs, is that he owes to the servant a duty which in the particular case he has failed to discharge. For the work intended to be done in the manner it was contemplated by the defendant, or in which the plaintiff might reasonably have believed was so contemplated, it owed to the plaintiff the duty of supplying safe and suitable machinery, cars and appliances, and for inj ury sustained by neglect so to do, it would have been responsible. But, by the very character of the appliances supplied, it is evident that the strain of the cable against the cars between the engines and the plow, when in the progress of the work it became necessary to subject them thereto, was intended to be met and in part sustained by the shives. The iron frame in which the wheel was set distributed the strain along the side of the car, and the revolving wheel diminished the friction of the cable. The fact that these shives were supplied by the company, indicated in a manner not to be misunderstood that it was not expected that the stanchions were to be subjected to the strain of the mighty power necessary to force the plow along the cars. If the plaintiff, instead of using the shives while pulling the plow around a curve, had run the cable against the stanchions, and by reason of this a defective sill had been stripped from the car, or the stanchions had pulled out the defective sill, and he had been injured, the nonliability of the company would have been apparent, for the plaintiff, by departing from the directions of the company as to the manner of using the appliances, would have assumed all risk consequent to his action.

We are unable to perceive any principle upon which a different rule should be applied to the circumstances shown by the evidence. It is true the plaintiff did not know that the cable was hung on the submerged stump, but neither did the defendant, and unless it was negligence on its part to leave the stump on its right of way, which it was not, we see no failure of duty towards the plaintiff. He did what was not supposed to be a dangerous act — i. e., attempted to take up the slack of the cable by moving the engine, leaving the end of the cable attached to the plow. Unexpectedly it was found that the cable was hung on the stump, and the result was that a great strain was put on the car, a strain it was not expected it should be subjected to, and in a manner totally different from that in which it was contemplated the strain incident to its service should be applied — i. e., against the stanchions instead of through the shives. The misfortune, if not the fault, of the plaintiff was, that under circumstances not fully appreciated by him, in which it was possible or it may be probable that an unknown strain would be encountered, he used the car in a manner not intended to withstand the strain to which it was known the car would be subjected, and neglected to employ the appliances supplied to be used when the strain was encountered in the service for which the car was intended.

Reversed and remanded.