Opinion
No. 32973.
January 24, 1938. Suggestion of Error Overruled, February 21, 1938.
1. VENUE.
A petition for change of venue is not a nullity unless it is so void of substance that it cannot be cured by amendment.
2. EVIDENCE.
A court can and does take judicial notice of who is its clerk.
3. VENUE.
That plaintiff was clerk of court in which action had been brought was sufficient ground for change of venue to prevent order therefor from being void, notwithstanding that affidavit annexed to petition for change was defective in one of its formal parts, that allegations of petition did not comply with statute, and that order was entered without hearing any evidence.
4. COURTS.
A state court is required to follow decisions of federal Supreme Court in interstate railroad cases involving injuries to employees whether decisions seem right or wrong.
5. MASTER AND SERVANT.
Where master has provided a reasonably safe method of doing work, a servant electing to use different and dangerous method is negligent and cannot recover for resulting injuries.
6. EVIDENCE.
In action for death of railroad brakeman struck by cattle guard while riding on side of box car, fact that photograph of a trainman on side of a similar box car standing opposite cattle guard involved in fatal accident had not been taken with train in motion did not discredit photograph as evidence of relevant physical facts.
7. APPEAL AND ERROR.
The decision and judgment of trial court is presumed to be correct on appeal.
8. APPEAL AND ERROR.
Where material evidence produced at trial was not reproduced before reviewing court in such manner that it could tell what evidence was, reviewing court was required to assume that it was of such character as to sustain decision and judgment.
9. MASTER AND SERVANT.
Evidence that if deceased brakeman struck by cattle guard while riding on side of box car had been standing erect in position customarily assumed by railroad employees riding on sides of box cars, clearance would have been ample, and that brakeman at time of accident was riding with his hips bent out and away from car, established that brakeman had elected to use a dangerous and unsafe way of riding, and precluded recovery against railroad for his death.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Gex Gex, of Bay St. Louis, Brunini Hirsch and W.W. Ramsey, all of Vicksburg, and Bidwell Adam, of Gulfport, for appellant.
By Section 495, it is provided that where a citizen resident in this state shall be sued in any county other than the county of his residence, the cause may be removed to the county of his residence upon motion. Under this section, this court has repeatedly held that the provisions thereof were not applicable to corporations, either domestic or foreign.
Morrimac Veneer Co. v. McCalip, 129 Miss. 671; Plummer-Lewis v. Francher, 111 Miss. 656.
As to Section 500, which permits changes of venue under proper proceedings, on the ground of prejudice existing as to either of the parties, this court has not as yet passed upon the question as to whether corporations may avail themselves of the provisions of that statute. Assuming, but not conceding, that corporations may take advantage of the provisions of Section 500, and obtain a transfer of a cause to another county on the ground of prejudice, we submit that the defendant wholly failed to comply with any one of the provisions of the statute by which it attempted to obtain a change of venue.
Wilson v. Rodewald, 49 Miss. 506.
The statute provides that the petition must be under oath, and no proper oath is appended to the motion.
Griffith's Chancery Practice, sec. 189, page 186; Holmes v. Lemon, 15 So. 141; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Stewart v. Coleman Co., 81 So. 653; Burks v. Burks, 66 Miss. 494.
The court will note that in the cases above cited the purported affidavit was in much stronger terms than that appended to the motion for change of venue in the instant case. In those cases, the affidavit was made by the agent or attorney upon his information and belief, while the affidavit in the present case is that the attorney making the affidavit is "of the opinion" that the facts are true. Even if the affidavit had been made by the attorney in strict conformity with the law, when it was met by a denial of the facts alleged in the motion, under the oath of the plaintiff, as was done in this case, the motion could not have been sustained without evidence thereon, for two reasons: first, because of the rule of law as set out in Griffith's Chancery Practice, supported by the decisions above cited; and second, because of the mandatory provisions of the statute, which require evidence in support of such a motion.
We submit, however, that the purported affidavit to the motion was so completely lacking in its essential allegations as to the truth of the facts set out in the motion, that the paper filed by the defendant was in effect, an unsworn motion, and since Section 500 provides mandatorily for such a motion to be filed under oath, it should not have been considered at all.
It is true that in the matter of granting continuances the court is vested with considerable discretion, but where prejudice to one of the parties results from a failure to grant a continuance, it is this court's duty to reverse for that error alone.
Bedford v. Gartrell, 36 So. 529.
It was a question for the jury to say whether or not the railroad company was negligent in failing to provide a reasonably safe place for deceased, J.R. Still, to work. Under the Federal Employees Liability Act, Section 51, Chapter 45, U.S. Code, provides that the railroad shall be liable for such injury and death resulting in whole or in part from its negligence, or by reason of any defects or insufficiency due to its negligence, in its engine, cars, appliances, machinery, roadbed, works, boats, wharfs, or other equipment. We respectfully insist that the failure of the railroad company to maintain the cattle gap a sufficient distance from the side of the car to clear a man, in accordance with the custom and practice of other railroads, and in accordance with their own plans and blueprints, was a question of fact the jury should have passed on.
Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Lowe v. M. O.R. Co., 149 Miss. 889, 116 So. 601; Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858.
The United States Supreme Court recently held, in the case of Jamison v. Encarnacion, 281 U.S. 635, 74 L.Ed. 1082, that the Federal Employees Liability Act should be liberally construed to protect the largest number of men in hazardous employment.
It has been generally held by the Supreme Court of the United States, by the inferior federal courts, and by the supreme courts of practically every state in the Union, in cases where employees have been knocked from the top of, and from the side of cars by water spouts, water pipes, scale boxes, coal chutes, low bridges, projections, telegraph poles, mail crane platforms, cattle gaps, cattle chutes and fences, posts, switch stands, sign limit boards, limbs from trees and cars too near the track, that the railroad company is liable for such injuries.
Wilson v. N.Y., N.H. H.R. Co., 69 A. 364; T. P. Ry. v Swearingen, 196 U.S. 51, 49 L.Ed. 382; C.O. G.R. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; P. R.R. Co. v. Marland, 239 Fed. 1; Bryce v. C.M. St. P. Ry., 72 N.W. 780; Hughes v. Louisville N.R. Co., 48 S.W. 671; Reading Co. v. Geary, 47 F.2d 142; L.R. Ft. S. Ry. Co. v. Voss, 18 S.W. 172; Georgia Pac. Ry. v. Davis, 9 So. 252; Whipple v. N.Y., N.H. H.R. Co., 35 A. 305; Illinois Terminal R. Co. v. Thompson, 71 N.E. 328; Pikesville R. E.G.R.R. v. State, 42 A. 214; Withee v. Somerset Traction Co., 56 A. 204; L. I.R.R. v. Hardin, 157 S.W. 15; Hoffmeier v. K.C., L. Railroad, 75 P. 1117; Scanlon v. B. A. Railroad, 18 N.E. 209; Washington R.R. v. Scala, 244 U.S. 630, 61 L.Ed. 1360; Murphy v. Wabash R. Co., 21 S.W. 862; Atchison, T. S.F. Ry. Co. v. Tack, 130 S.W. 596; Northern Ala. Ry. Co. v. Mansell, 36 So. 459; Fredenburg v. Northern Cent. Ry. Co., 21 N.E. 1049; Wood v. Louisville N.R. Co., 88 Fed. 44; Curran v. Union Stockyards Co., 196 N.W. 135; Keist v. Chicago G.W. Ry., 81 N.W. 181; McAfee v. Odgen Union Ry. Depot Co., 218 P. 98; Westover v. Wabash Ry. Co., 6 S.W.2d 843; Bonner v. LaNoue, 15 S.W. 803; Morrisette v. C.P. Ry. Co., 52 A. 520; Emch v. Pennsylvania R. Co., 37 F.2d 828; Johnston v. O.S.L. U.N. Ry., 31 P. 283; Boss v. Northern Pacific R.R. Co., 40 N.W. 590.
On the question as to the plaintiff's knowledge of the risk involved it is proper for the court and jury to take into consideration whether or not the engine and cars on which the plaintiff was riding or working at the time of the accident was of the usual size, height and width, or whether or not there was an unusual condition that he did not know and appreciate at the time of the accident.
Guana v. Southern Pac. Co., 139 P. 782; Birmingham Belt R. Co. v. Bennett, 146 So. 265; Davis v. Crane, 12 F.2d 355; Northern Pac. v. Mortenson, 63 Fed. 530; Erslew v. N.O. N.E.R. Co., 21 So. 153; C.O. G.R.R. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; Wood v. L. N.R. Co., 88 Fed. 44; Sanderson v. B. M. Railroad, 101 A. 40; N.Y., C. St. L.R.R. Co. v. Boulden, 63 F.2d 917; Devine v. Delano, 111 N.E. 742, Ann. Cas. 1918A 689; Kearns v. C.M. St. P. Ry., 24 N.W. 231; Central Trust Co. v. Tennessee V. G. Railroad Co., 73 Fed. 660; New York C. St. L.R. Co. v. Peele, 164 N.E. 705, 49 S.Ct. 263; Wright v. Y. M.V.R.R. Co., 197 Fed. 94; Derrington v. Southern Ry. Co., 40 S.W.2d 1069; Chesapeake O. Ry. Co. v. Shamblen, 179 S.W. 837; Youngstown O.R.R. Co. v. Halverstodt, 12 F.2d 995; Rapid Transit Ry. Co. v. Edwards, 118 S.W. 838; Reardon v. D.L. W.R. Co., 147 A. 544; St. L. S. Ry. v. Holt, 121 S.W. 581; Davis v. Scroggins, 284 Fed. 760; Dwyer v. St. L. S.F.R. Co., 52 Fed. 87; Louisville N.R. Co. v. Parker, 138 So. 231; Norfolk Western Ry. Co. v. Beckett, 163 Fed. 479; Westover v. Wabash R.R., 6 S.W.2d 843; Bruce Co. v. Leake, 3 S.W.2d 988; Gila Valley R.R. Co. v. Hall, 232 U.S. 94, 58 L.Ed. 521; G.C. S.F. Ry. v. Darby, 67 S.W. 446.
In the instant case, defendant made much of the fact that the Railroad Company had adopted certain rules relative to clearances and notices of cattle gaps that did not clear a man on the side of cars in the discharge of his duties.
Plaintiff objected to this testimony on the ground that Section 55, Chapter 45, U.S. Code, provides that no common carrier can exempt itself by rules from its duty to furnish a reasonably safe place for its employees to work.
McIntyre St. L. S.F. Railroad, 227 S.W. 1047; S.P., L.A. S.L.R. Co. v. Brown, 258 Fed. 806; Devine v. Delano, 111 N.E. 742, Ann. Cas. 1918A 689; Wilson v. N.Y., N.H. H.R. Co., 69 A. 364; 18 R.C.L. 610, sec. 107; 39 C.J., page 397, sec. 515, and page 777, sec. 977.
The question of the right to the appointment of an administrator cannot be raised in this court because it is a collateral attack upon that judgment.
It was held in the case of Cook v. Abernathy, 77 Miss. 873, by this court, that the granting of letters of administration of the deceased estate was prima facie proof that he was dead. It has been numerously held in cases in Mississippi that the appointment of an administrator is prima facie proof that the requisite facts existed.
Weir v. Monahan, 67 Miss. 435; Temple v. Cain, 60 Miss. 478; Carr v. I.C.R.R., 60 So. 277; American Car Foundry Co. v. Anderson, 211 Fed. 301; McGee v. McAuley, 91 Fed. 462; U.S.C.A., Title 45, sec. 56.
It is the contention of the appellant in this case that the cause of action by virtue of the federal statute existed and was enforceable anywhere at which the defendant was found; the defendant being found in Hancock County, Mississippi, the cause of action was a sufficient asset in Hancock County for the appointment of the administrator if it is the contention of the court that the property must have existed in Hancock County before an administrator could be appointed.
Pacific Co. v. DeValley Da Costa, 190 Fed. 689, 54 L.Ed. 900.
The courts have uniformly held that the right of a plaintiff to sue at all, must be challenged by a plea in abatement, if at all, and that a plea to the merits being a plea in bar, waives the right of the defendant to interpose that objection.
Hodges v. Kimball, 91 Fed. 845; Dennick v. Railroad Co., 103 U.S. 11; St. Bernard v. Shane, 220 Fed. 852; Atchison T. S. Ry. v. Spencer, 20 F.2d 714; Keane Wonder Mining Co. v. Cunningham, 222 Fed. 821; Texas Pipe Line Co. v. Ware, 15 Fed. 2d 171.
Smith Johnston, of Mobile, Ala., for appellee:
It is contended by the appellant that jurisdiction in this cause never vested in the Circuit Court of Harrison County, Mississippi, because the affidavit attached to the motion for change of venue was insufficient. The first objection to the affidavit is that it is made by defendant's counsel, and not by the defendant. Of course, it needs no argument that a railroad cannot make an affidavit, but must make it through some one of its agents or employees. It has been the custom from time immemorial for attorneys for railroads to make such affidavits on behalf of the railroad. They are always made in connection with the removal of causes to the Federal Court, and in other court proceedings.
The next objection to the affidavit is that it states that affiant is of the opinion that the facts stated in petition are true and correct. The statute provides that the petition must set forth that the party "has good reason to believe." The affiant's affidavit that he is of the opinion that the facts stated are true is equally as strong as that he has good reason to believe.
46 C.J. 1118.
In Webster's dictionary, one of the meanings of the word "opinion" is given: "A belief." So that the affidavit that the affiant is of the opinion that the facts stated are true is as strong or stronger than an affidavit that he believes them to be true.
It is respectfully submitted that upon the undisputed facts the court was fully justified, without going any further, in holding that it was necessary to change venue in order to avoid undue influence.
Humphreys v. Cashin, 90 So. 88.
As to the law question involved in the court's refusal to admit the reports made by some of the train crew, we respectfully submit that these reports were wholly incompetent evidence, and that this court and others have so decided many times.
V. M.R.R. Co. v. McGowan, 62 Miss. 682; Simms v. Forbes, 38 So. 546, 86 Miss. 412; G.M. N.R. Co. v. Hudson, 107 So. 369, 142 Miss. 542; Woods v. Franklin, 118 So. 450, 151 Miss. 635.
It seems to be the universal ruling, not only in Mississippi but everywhere, that after an accident of this nature is over, statements by employees, even though made a few minutes after the accident, are not a part of the res gestae. In the present case, it is not shown when or where the reports were made. However, this testimony is not only inadmissible on the ground that it was not a part of the res gestae, but also on the ground that it is hearsay, and the court distinctly ruled that it would not admit the reports on this ground. Plaintiff made no effort to show that the matter which they wanted to introduce was not based on hearsay.
The courts have held many times that reports made in regard to accidents of this kind are inadmissible.
Ex parte Nolen, 223 Ala. 213, 135 So. 337; Collins v. M. O.R. Co., 210 Ala. 234, 97 So. 631; Culver v. Alabama Midland Ry. Co., 108 Ala. 330, 18 So. 827; Culley v. Northern Pacific Ry. Co., 77 P. 202; Ex parte Schoepf, 77 N.E. 276; Armstrong v. Portland, R.R. Co., 97 P. 715.
When the defect or danger which caused the injury was a permanent and continuing defect or danger and which had so long existed or continued in practically the same condition that it must be assumed that the injured employee as a reasonable observant intelligent man was well acquainted with it and of its defects and dangers, there is no liability, because of assumption of risk.
Ry. Co. v. Bridges, 156 Miss. 206.
Recognition is given to this federal rule had the defect or danger existed only for three months.
Railroad Co. v. Humphries, 170 Miss. 840.
The federal rule, rash as it may seem to us in this state, is further that where the servant has actual knowledge of the dangers to which the service exposes him, although the danger may have arisen from the railroad's negligence, or where the defects or dangers are so obvious that in the exercise of ordinary prudence and care in the performance of the services for which he was employed he should have known of their existence, he assumes the risk of injury incident to their existence.
39 C.J. 727; Utah Co. v. Bateman, 99 C.C.A. 365, 27 L.R.A. (N.S.) 958.
It is but a restatement of what has been said that knowledge is presumed when the dangers are obvious to an intelligent and experienced person who has had long and ample opportunity to observe them, as where the conditions have existed without material change for so long at time that the servant if reasonably observant could not reasonably have failed to know of them.
39 C.J., pages 736, 737, cases cited.
It is thoroughly settled that if an employee knows and appreciates a danger he assumes the risk of being injured thereby.
Louisville Nashville Railroad Co. v. Russell, 144 So. 478.
An experienced railroad man cannot be supposed to have been ignorant of the danger. Still had worked in and about and passed through this cattle guard for twenty years, and it cannot be supposed that he was ignorant of the danger of being struck if he leaned away from the car too far.
Southern Pacific Co. v. Berkshire, 254 U.S. 415; Chesapeake Ohio Ry. v. Leitch, 276 U.S. 429; Toledo, St. L. W.R.R. Co. v. Allen, 276 U.S. 165; Jacobs v. Southern Ry. Co., 241 U.S. 299; Delaware, Lackawanna Western R.R. Co. v. Koske, 279 U.S. 7; Northwestern Pacific R.R. Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462.
All of the foregoing recent cases of the Supreme Court of the United States definitely hold that where the evidence shows an employee has worked in and around the place where he is injured, the court would conclusively presume that he knew and appreciated the danger of being injured thereby.
The plaintiff in this case has wholly failed to prove any negligence on the part of the defendant. The Supreme Court has held many times that the burden is upon the plaintiff to prove negligence, and that such negligence constitutes the proximate cause of the injury. The jury cannot speculate upon either question. Neither is the jury allowed to determine railroad problems as to what constitutes negligence unless it is properly supported by evidence.
Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333; Atchison, Topeka S.F. Ry. v. Toops, 281 U.S. 351; New York Central R. Co. v. Ambrose, 280 U.S. 486; Delaware, Lackawanna Western R. Co. v. Koske, 279 U.S. 7; Toledo, St. L. W.R. Co. v. Allen, 276 U.S. 165.
The federal courts do not adopt the scintilla rule of evidence that is followed by a great many of the state courts. In fact, it has very definitely repudiated this rule many times, and has held that although one witness has sworn positively to facts that would make out a cause, it is nevertheless the duty of the court to direct a verdict if the testimony of this witness has been discredited, or is in conflict with the great weight of the evidence in the case.
Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333; Atchison, T. S.F. Ry. v. Toops, 281 U.S. 351; New York Central R.R. Co. v. Ambrose, 280 U.S. 486; Toledo, St. L. W.R. Co. v. Allen, 276 U.S. 165.
It seems plain to us that the question as to whether or not the Chancery Court of Hancock County had the power and jurisdiction to appoint Mr. Favre as administrator in this case is dependent solely upon the statutes of Mississippi, and is not in any way controlled by the Federal Employers Liability Act.
Section 1382, Code of 1930; First National Bank of Richmond v. Holland, 39 S.E. 126; Mercer v. Dobbyn, 173 N.E. 338; Robinson v. Dannger's Estate, 174 A. 772; Berry v. Rutland R. Co., 154 A. 671; Louisville Trust Co. v. L. N., 43 S.W. 698.
The Mississippi statutes are not broad enough to authorize the appointment of an administrator in a county in Mississippi where the deceased never lived, where he did not die, and where he had no personal property, merely because a cause of action might have arisen out of the death of the deceased which can be enforced in that county.
If the decree appointing Favre as administrator shows on its face that the court was without jurisdiction to make the appointment, then the appointment would be null and void, and this can be raised at any time, at any place, by any person. On the other hand, if the decree of the Chancery Court shows on its face that the court did have jurisdiction to make the appointment, then it is our idea that the correctness and accuracy of the decree could not be collaterally attacked in these proceedings, but it would be necessary to make a direct attack in the Chancery Court. We think the authorities cited by the appellant, and also those which we will cite, support this conclusion.
Weir v. Monahan, 7 So. 291, 67 Miss. 435; Carr v. Illinois Central, 60 So. 277; American Car Foundry Co. v. Anderson, 211 Fed. 301; Duke v. State, 57 Miss. 229; Gasque v. Moody, 20 Miss. 153.
It cannot be denied that the federal statute which creates the cause of action arising out of the death vests the cause of action solely and exclusively in the personal representative of the deceased.
U.S.C.A., Title 45, sec. 51, and annotation 362, page 228; Sterrett v. Second Nat. Bank, 246 Fed. 753; LaCasse v. N.O., T. M.R. Co., 64 So. 1012; Am. R.R. of Porto Rico v. Didricksen, 227 U.S. 145.
It seems, therefore, that it is always open to the defendant at anytime before final judgment is rendered to show that the title to the cause of action does not vest in the plaintiff.
Brown v. Boston M.R. Co., 186 N.E. 59.
Argued orally by W.W. Ramsey and W.J. Gex, Jr., for appellant, and by Harry H. Smith, for appellee.
J.R. Still was, at the time of his death, a resident of Nashville, Tenn. He had never resided in Mississippi. He was killed at Wales, Tenn., while employed by appellee railroad company in interstate transportation. It was stated before us in the oral argument by appellant that the decedent had no personal property in Mississippi at the time of his death, other than the cause of action for his alleged wrongful death under the Federal Employers' Liability Act, which belongs to an administrator. Appellant Favre, the circuit clerk of Hancock county, in this state, was nevertheless appointed administrator of the estate of Still, and as such administrator instituted this action in that county. In view of the fact that it has often been held that when a party brings a suit respecting which he has no legal or equitable right or interest, and that when this is made to appear, there is no case in court; and in view of the statement made before us in the argument as aforesaid, we called for additional briefs upon the question whether under section 1629, Code 1930, taken in connection with section 1628, an administrator could be appointed in this state for a nonresident decedent who had no personal property here other than an alleged cause of action for death, the cause of action having accrued in another state.
Attention is called to the fact that our statute for the appointment of an administrator does not include assets, as is the case in many if not most states, but speaks of personal property, and we call attention to the definition of personal property as set forth in section 1382, Code 1930. But even if the term personal property were broad enough to include assets, we cite the following cases, which, among others, seem to hold that a claim for damages growing out of the death of a nonresident killed in the state of his residence is not such an asset as will authorize the appointment of an administrator in another state. Mercer v. Dobbyn, 91 Ind. App. 682, 173 N.E. 338; Berry v. Rutland R. Co., 103 Vt. 388, 154 A. 671; Hall's Adm'r v. Louisville N.R. Co., 102 Ky. 480, 43 S.W. 698, 80 Am. St. Rep. 358. For reasons which it is not necessary to pursue, we have determined that the record is not in such attitude that we can definitely pass on the stated question, but refer to it as above that it may be understood that the question is left open for decision when it may subsequently arise in a proper manner.
The action having been instituted in Hancock county wherein the appellant Favre is circuit clerk, the appellee railroad filed its petition for a change of venue, alleging therein that because of the fact that the administrator, who is plaintiff in the action, is the same person who is chancery and circuit clerk of the county, appellee could not obtain a fair and impartial trial therein. There were other allegations in the petition, but not enough to fully comply with the statute on the subject. The affidavit annexed to the petition was defective in one of its formal parts. It is admitted that the court sustained the petition and entered the order changing the venue, without hearing any evidence, all over the objection of appellant.
Appellant contends that for the reasons above briefly stated, the transfer to the other county was absolutely void; that the court to which the case was removed was wholly without jurisdiction; that the judgment for appellee subsequently entered upon the trial on the merits is without any legal validity or existence; and that, therefore there is properly nothing before us on this appeal except the issue of reversal and remand to the original county. As authority for his contention, appellant relies on Wilson v. Rodewald, 49 Miss. 506. In that case the change of venue was by consent, without petition or evidence. In the case here before us there was a petition, and unless it can be said to be so void of substance that it could not be cured by amendment, it cannot be pronounced a nullity. Dalton v. Rhodes Motor Co., 153 Miss. 51, 53, 120 So. 821. It was amendable, both the petition and the affidavit, to say the least of it. And as to the evidence, the court can and does take judicial knowledge of who is its clerk, and the court evidently considered the fact that the clerk of the court was plaintiff, although in a trust capacity, was sufficient for the change of venue. If this was insufficient, the change of venue was error, but there was nevertheless sufficient in substance in that of which the court could take judicial knowledge to prevent the order for the change of venue from being absolutely void.
Upon the completion of the trial, the court granted a peremptory instruction of no liability, and, in view of the foregoing observations, we must now proceed to the merits and consider whether that action by the court was correct.
Appellant's decedent was employed, on the day of the injury and death, as a brakeman. He had been employed on this division for many years. The train was being switched, and the decedent was riding on the side of a box car with his feet in the stirrup provided for that purpose, and holding with both hands the side handholds or grabirons. In passing a cattle guard decedent was struck by it, was knocked from the car, and was killed. Appellant contends that there was not sufficient clearance between the cattle guard and the side of the freight car to permit a brakeman riding on the side of the car to pass safely by the cattle guard.
Appellee railroad company contends that the cattle guard was constructed in accordance with and in conformity to the standard for cattle guards which had been prescribed by its engineering department for twenty years, throughout the hundreds upon hundreds of miles of its railroad system into and across several states; and that in all those years no accident, other than this, had ever occurred on account of its cattle guards. Appellee contends that this is an end of the matter and cites two comparatively recent cases in which the federal Supreme Court has said: "Carriers, like other employers, have much freedom of choice in providing facilities and places for the use of their employees. Courts will not prescribe the space to be maintained between tracks in switching yards, nor leave such engineering questions to the uncertain and varying opinions of juries." Toledo, etc., R. Co. v. Allen, 276 U.S. 165. 170, 48 S.Ct. 215, 217, 72 L.Ed. 513. "Defendant was not bound to maintain its yard in the best or safest condition; it had much freedom in the selection of methods to drain its yard and in the choice of facilities and places for the use of its employees. Courts will not prescribe standards in respect of such matters or leave engineering questions such as are involved in the construction and maintenance of railroad yards and the drainage systems therein to the uncertain and varying judgment of juries." Delaware, etc. R. Co. v. Koske, 279 U.S. 7, 11, 49 S.Ct. 202, 204, 73 L.Ed. 578.
Although in interstate railroad cases of injuries to employees we must follow the decisions of the federal Supreme Court, whether they seem to us right or wrong, we do not think the Supreme Court meant to say by the broad language above quoted that when a railroad system adopts an engineering plan for its ways and appliances, and when the particular way or appliance in question is shown to be in substantial conformity therewith, no further question is to be considered in respect thereof. We must believe that they meant that when the particular way or appliance is one which may be used with reasonable safety by an employee who is using the same in the usual, ordinary, or normal manner in and for which the use was designed or intended, then the employer has complied with its legal obligations in that respect, even though a better or safer appliance or way might have been furnished. They did distinctly mean to hold, as we think, that an employer is not bound to provide means and appliances of such character that no possible injury could occur in the use thereof, and this regardless of the manner of the use by the employee.
So construing the federal decisions they would be brought in harmony with the rules of the common law as generally declared and as we have ourselves held. We have repeatedly held that when the master has provided a reasonably safe method or means of doing certain work and the servant elects to use different and dangerous methods, he cannot recover for the reason that such acts become the negligence of the servant and not of the master. Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 715, 118 So. 441, and the cases therein cited. This principle was more full stated in Newell Cont. Co. v. Flynt, 172 Miss. 719, 728, 161 So. 298, 301, 743, as follows: "The law is that the master is as much entitled to expect that a servant will exercise reasonable care in the use and operation of a tool or appliance in the normal manner to avoid injury as the servant is entitled to expect that the master will use reasonable care to furnish him a reasonably safe tool or appliance. . . . When the law speaks of reasonable safety in a tool or appliance, or in a place to work, it means one which can be safely employed when the servant takes reasonable care in its normal use or operation. If this were not so, nearly all modern labor-saving and time-saving devices would be condemned; and danger, not practicalities, would become the controlling test, which is not the law. . . . If danger were the test, which fortunately it is not, the fresno would have to be discarded for the shovel and the hoe, railroad trains and motor-trucks would be prohibited, and we would return to the days of the ox wagon and the cart."
The question for decision is, therefore, whether there was sufficient clearance between the cattle guard here in issue and the side of the freight car upon which the deceased was riding to allow decedent to safely pass the cattle guard had he been holding himself upon and alongside the side of the car in the usual, ordinary, normal, or professional like manner; the manner in which the employer in designing, furnishing, erecting and maintaining its ways and appliances had a right to expect him to act.
Shortly after the accident the railroad company procured a freight car admitted to have been of the exact dimensions and construction throughout as was the car upon which decedent was riding. This car was spotted on the same track with the stirrup and handholds exactly opposite the middle of the cattle guard here in issue; it being undisputed that the cattle guard was then and has since remained in exactly the same position and in every material respect exactly in the same condition as on the date of the accident. A railroad trainman of the same size, weight, and height as decedent took his position with his feet in the stirrup and both hands holding to the handholds or grabirons and with his body held in the proper position according to the usual, ordinary, and normal manner in railroad practice, and thereupon a photographic camera was placed at the distance apparently of about a car's length and immediately alongside the train of cars, and there a photograph was taken of the physical situation aforesaid, which photograph was introduced in evidence, and is now before us by special order of the trial judge.
This photograph is so manifestly a clear and almost perfect reproduction, down to the slightest material detail, and is so obviously taken from the proper camera position as that we may say, with entire confidence, that it amounts to a conclusive demonstration of the physical facts as disclosed by it. Compare Mobile, etc., R. Co. v. Bryant, 159 Miss. 528, 536, 132 So. 539. In fact, appellant makes no attempt to discredit the truth and integrity of this photograph, except to say that it ought to have been taken with the train in motion; a contention which is so manifestly not tenable that appellant has not seriously pressed it.
Looking to this photograph and to the position of the trainman, which position was admitted by every witness of railroad experience, who was questioned, to be the correct position according to the usual and normal in practice among railroad employees, we see at once that only about one-half the space between the car and the cattle guard was occupied by the body of the trainman, and that the clearance was ample, so much so that there is not here involved any nicety of calculation as to a few inches, as contended for by appellant. The only eyewitness to the accident testified that the decedent was holding onto the car with both hands. Appellant has invited us to consider, however, that in spite of this testimony of the only eyewitness, the decedent was holding on with one hand and signaling with the other. Even so, and looking again to the photograph, it is plain that if standing in the correct and normal position and signaling with one hand, there would still have been sufficient, even ample, clearance.
The only eyewitness was introduced by appellant. This witness testified, as we have already mentioned, that the decedent was holding onto the car with both hands, and the witness made a demonstration before the trial court as regards the position of the body of the decedent at the time he struck the cattle guard. The manner of this demonstration, what the demonstration showed, is not disclosed by the transcript. Inasmuch as the decision and judgment of the trial court is presumed to be correct, and where material evidence produced in the trial is not reproduced here in such a manner that we can tell what it was, we must assume that it was of such character as to sustain the decision and judgment; and we might well rest the case at this point. But this witness on cross-examination went on to explain that decedent was not standing with his body straight or nearly so, but that he was riding with his hips or the middle part of his body bent out and away from the car, and to such an extent that this was the part of his body which struck the cattle guard.
This eyewitness had made a statement to the railroad company to the same effect before the taking of the photograph above mentioned. Therefore, on the same occasion, with the same equipment, and with the same trainman, another photograph was taken with the trainman holding on with both hands but to the handhold next lower than either one of the two upper handholds which the decedent should have used in the proper and normal use, and this photograph shows that the hips of the trainman in that awkward, unnatural, and abnormal position protruded so far away from the car as to come squarely in contact with the cattle guard, and would have come in contact with it even if it had had eight to ten inches more clearance space, as appellant contends should have been provided. In the light of the testimony of the eyewitness, the conclusion seems inescapable that this was the manner in which decedent was riding and was what caused his unfortunate accident; that the deceased elected to use an unsafe and dangerous way, an unusual or abnormal way, instead of the normal and safe way readily and easily within his reach and use; whence it follows that, applying the facts to the principles of law already stated, there is no liability on the part of the employer, and the learned trial court was correct in so holding.
What we have said renders it unnecessary to discuss the issue of assumption of risk, or the other matters so ably presented in argument.
Affirmed.