Opinion
No. 33256.
June 20, 1938. Suggestion of Error Overruled July 25, 1938.
1. APPEAL AND ERROR.
Whether trial court erred in directing verdict for certain defendant at close of plaintiff's case was required to be determined on evidence before court when ruling was made, since such defendant could not be charged with evidence subsequently introduced.
2. RAILROADS.
In action for injuries to occupant of automobile which collided with gasoline engine hauling iron rails on logging railroad, evidence as to whether corporation which bought rails from owner of logging railroad was actually hauling rails notwithstanding contract requiring seller to deliver rails to destination beyond logging road terminal authorized directed verdict for such corporation.
3. RAILROADS.
In action for injuries to occupant of automobile which collided with gasoline engine hauling iron rails on logging railroad, evidence as to liability of operator of engine, who was acting as an independent contractor, or as servant of owner of logging road, or as servant of buyer of rails, made case for jury.
4. RAILROADS.
The owner of a public or private railroad may, by valid sale or lease thereof to another, relieve itself from liability for negligence of such other in use of railroad, but in absence of such sale or lease, permission by owner of railroad to another to run cars over it does not relieve owner of liability for negligence of such other.
5. RAILROADS.
An owner of logging railroad, which sold ties and rails thereof but continued to own right of way, would be liable for injuries from negligent operation of engine by itself, by buyer, or by individual operating engine, with buyer's consent, as buyer's servant or an independent contractor.
6. RAILROADS.
The right of the owner of a logging railroad to cross highway was burdened with duty of observing due care when running its cars across highway to prevent injury to travelers thereon.
7. RAILROADS.
In action for injuries to occupant of automobile which collided with gasoline engine hauling iron rails on logging railroad, evidence as to liability of owner of logging railroad, which had sold ties and rails thereof but continued to own right of way, made case for jury.
APPEAL from the circuit court of Hancock county; HON.W.A. WHITE, Judge.
Robert L. Genin, of Bay St. Louis, for appellant, H. Weston Lbr. Co.
There are several questions which are used to determine whether or not work is performed as master and servant or as an independent contractor. The law is well settled as to what these questions are. Our Supreme Court in the case of New Orleans, B.R.V. M.R.R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191, phrased the questions to decide whether or not work was being performed as master and servant or as an independent contractor, and phrased these questions as follows: "(1) The right of selecting the servant; (2) the right to discharge the servant; (3) the right to control the servant;" and the court further said "that he is not a master who is interested in the ultimate result of the work done as a whole, but not in the details of its performance."
Our court in the case of Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669, 670, said: "An `independent contractor' is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished."
Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156.
The defendant's testimony, and the rebuttal thereof, magnifies the errors of the court below in refusing to direct a verdict for the H. Weston Lumber Company. Pearson, the man operating the car with the rails loaded thereon, was under a contract with David J. Joseph to do the work, as testified to by plaintiff's own witnesses. The rails, car, motor car and cross-ties were all the property of persons other than the H. Weston Lumber Company, and the employees were all employees of Pearson. The defendant, the H. Weston Lumber Company, had no employee or servant around the accident, and the defendant, the H. Weston Lumber Company, cannot, by the greatest stretch of the imagination, be charged with any negligence.
T.J. Weaver, of Picayune, for appellant, Hubert Pearson.
It was clearly the duty of the (plaintiff) appellee, to warn and caution the driver of the car, if there was any apparent danger, and as this duty is imposed upon the plaintiff, the burden of proving the compliance with the law, and the performance of this duty rests solely upon the plaintiff.
A. V. Ry. v. Davis, 13 So. 693; I.C.R.R. Co. v. McLeod, 29 So. 76.
In the case at bar there was a man at the crossing frantically waving for the car to stop, and was seen by the driver of the vehicle in which (plaintiff) appellee, was riding, and should have been seen by the appellee.
In the case of Illinois Central v. McLeod, the court plainly states that the passenger or occupant of a vehicle is chargeable with the negligence of the driver, in an action against a third party, when the plaintiff does not show that she did all in her power to prevent the driver from committing the negligence complained of, and this is the law consistently followed by our Supreme Court, including the late case of Sternberg Dredging Co. v. Screws, 166 So. 754, and the cases therein cited.
The plaintiff, by all of her testimony, which is undisputed, shows a voluntary, unconstrained, noncontractual surrender of all care for herself to caution of the driver, and under these conditions the negligence of the driver is imputed to her, and she becomes charged therewith, and the jury should not have been instructed that the negligence of the driver cannot be imputed to the plaintiff unless it was shown by the preponderance of the evidence that the plaintiff had failed to caution or warn the driver of the vehicle.
Schultz v. Old Colony Street R.R. Co., 193 Mass. 309, 179 N.E. 873, 118 A.S.R. 502, 9 Ann. Cas. 402, 8 L.R.A. (N.S.) 597.
Gardner Backstrom, of Gulfport, for David J. Joseph Company.
Admitting for the sake of argument, but not as a fact, that plaintiff had made out a case against Hubert Pearson for the jury's consideration by the testimony of herself, her mother, and her sister, when she rested her case, still there could be no case for the jury's consideration against David J. Joseph Company until it was further shown that Pearson was the servant or employee of David J. Joseph Company at the time and place of the accident in question.
Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Caver v. Eggerton, 157 Miss. 88, 127 So. 727.
Liability in this case as against David J. Joseph Company must arise, if at all, out of the relationship of master and servant, not agency.
Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21.
The main essential required to constitute relationship of master and servant is that servant be subject to control of employer in operation of business or doing of thing at time in question.
Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 196; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669; McDonald v. Lumber Co., 165 Miss. 143, 147 So. 315; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; Railroad Co. v. Denton, 160 Miss. 850, 133 So. 656, 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310.
The true rule was admirably stated by Mr. Chief Justice SMITH in Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546, as follows: "The ultimate question for decision is whether the physical conduct of the employee in the performance of his duties is controlled or is subject to the right of control, by the employer. The relation of master and servant arises out of contract, express or implied." There is no testimony in the record from which even an inference may be drawn that Hubert Pearson was controlled or was subject to the right of control by David J. Joseph Company at any time, or had ever entered into any contract, express or implied, with said David J. Joseph Company, and the directed verdict was proper.
Y.M.V.R.R. Co. v. Lamensdorf, 178 So. 80; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156.
Section 6125 of the Code of 1930, commonly known as the whistle and bell statute, applies only to railroad companies and not to a logging railroad operated by a lumber company. There was no negligence attributable to Pearson in approaching the crossing, and there was manifest negligence on the part of the plaintiff and her mother in approaching the crossing.
Gex Gex and Evelyn Hunt Conner, all of Bay St. Louis, and Grayson B. Keaton, of Picayune, for appellee.
From all the testimony it is apparent that the H. Weston Lumber Company both for itself and the David J. Joseph Company, exercised constant supervision over the work being done by Pearson; almost daily they gave instructions to Pearson as to the method in which the work should be done; they told him the sizes and kind of stuff to load into each car; they, through Pearson as their agent, signed a number of the bills of lading under which the cars moved; they advanced money for Pearson's payrolls; the contract was an oral one, and the details are not testified to; the only presumption which could be drawn, therefore, was that the contract itself provided for the work to be done under the supervision of the H. Weston Lumber Company, since they in truth and in fact exercised that supervision. Pearson never had any contractual relations whatever with the Weston Sand Gravel Company, but the H. Weston Lumber Company arranged with the Weston Sand Gravel Company to permit them to use their tractor, which they in turn furnished to Pearson. No charge was made for that whatever, which in itself is significant of the fact that the work was being done for the H. Weston Lumber Company. If Pearson had in fact been an independent contractor, it is safe to assume that an additional charge for rental of the tractor would have been made. No charge was made for the use of the Weston road; that was furnished by H. Weston Lumber Company, and in fact all the instrumentalities with which Pearson worked were the property of the H. Weston Lumber Company, with the exception of the actual rail itself. We submit that under the foregoing facts, and all the authorities on this point, Pearson was the servant of the H. Weston Lumber Company, as well as of the David J. Joseph Company.
Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; D'Antoni v. Albritton, 126 So. 836; Kisner v. Jackson, 159 Miss. 424; 14 R.C.L. 67-76; 31 C.J. 473-475; 39 C.J. 1316-1323; Gulf Refining Co. v. Nations, 167 Miss. 315; Express Co. v. Diggs, 174 Miss. 650; Texas Co. v. Jackson, 174 Miss. 737; 45 C.J. 868, sec. 292; Southern Electric Securities Co. v. State, 44 So. 785, 92 Miss. 195; Boyd v. C. N.W. Ry., 75 N.E. 496; 14 R.C.L. 97, sec. 34.
As in the case of independent contracts in general, if the thing contracted to be done, involves, as a direct consequence, a danger which the owner of the premises is bound to avoid or to provide against, then the delegation of the work to an independent contractor will not relieve from liability for consequences proximately resulting from negligence in doing the thing thus contracted to be done.
13 R.C.L. 334, sec. 273; Carrico v. West Virginia C. P. Ry., 19 S.E. 571; Boucher v. N.Y.N.H. H.R. Co., 82 N.E. 15; McGinley v. Edison Electric Illuminating Co., 143 N.E. 537.
The H. Weston Lumber Company, in constructing its track, by virtue of its franchise right so to do, across a public highway, created a condition inherently dangerous to the public, if not properly safeguarded.
The right to delegate the use of its railroad and right of way to a third party was not within the charter powers of the H. Weston Lumber Company, and when that company attempted to do so, the negligence of such party was the negligence of the H. Weston Lumber Company.
The case of Y. M.V.R.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393, is directly in point, and in that case the court stated: "Such a person (a guest) is not under the same duty nor charged with the same degree of care as a person driving the automobile or other vehicle, and where the person driving the automobile or other vehicle is a safe and prudent and careful driver the vigilance of the occupant of such automobile or other vehicle is considerably relaxed, and he may assume that the driver will take such caution as is reasonable and prudent under the circumstances . . . In M. O.R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, it was held that the defense of contributory negligence is an affirmative defense, and that the burden of proof as to it is upon the defendant."
Columbus Greenville R. Co. v. Lee, 115 So. 782; Miss. Central R. Co. v. Roberts, 160 So. 604, 173 Miss. 487.
Where a peremptory instruction has been granted by the lower court, it is the duty of this court to consider as true all testimony favorable to the losing party, and to draw all favorable inferences therefrom.
Gravette v. Golden Sawmill 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; Masonite Corp. v. Dennis, 175 Miss. 855.
The question of the relationship of master and servant as between David J. Joseph Company and Pearson and Weston was to say the least a question for the jury.
Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; D'Antoni v. Albritton, 126 So. 836; Kisner v. Jackson, 159 Miss. 424; Gulf Refining Co. v. Nations, 167 Miss. 315; Express Co. v. Diggs, 174 Miss. 650; Texas Co. v. Jackson, 174 Miss. 737.
We submit that under the facts and the overwhelming weight of the decisions in this state, Hubert Pearson was the agent of David J. Joseph Company, notwithstanding the fact that all the parties defendant designated him an independent contractor, because as stated by this court in the case of Kisner v. Jackson, supra, "It is not what the employer does under a contract such as this that is determinative of its effect, it is what he may do under it. 39 C.J., pp. 1316-1317."
Both the David J. Joseph Company and the H. Weston Lumber Company exercised supervision over the acts of Hubert Pearson, under the contract, as shown by the evidence, and Pearson acted on and obeyed all instructions given him by the Joseph Company. The Weston Lumber Company, even if it might be conceded that they acted for and on behalf of the Joseph Company, furnished the instrumentality with which to do the work; they gave detailed instructions as to how and when the shipments were to be made; they instructed Pearson as to the kind and quality of stuff to be shipped; they advanced the money for payrolls, and whether acting in their own behalf or for Joseph, by their acts they created the relation of master and servant between themselves and Pearson.
The H. Weston Lumber Company being, as we contend, the agents of the David J. Joseph Company, its agents and employees engaged in the work of David J. Joseph Company were also agents of that company, and Pearson being so engaged and subject to supervision by David J. Joseph Company in the manner testified to, he was the agent of that company.
Gulf Refining Co. v. Nation, 167 Miss. 315.
We submit that under all the facts and the law applicable thereto, it was error to grant the peremptory instruction on behalf of David J. Joseph Company.
It is well settled that the lessor, the owner of a railroad, and the lessee, operating it, are both liable, for the torts of the lessee committed in the operation of the road. The liability of the lessor is predicted upon the fact that its lessee is its agent for the purpose of operating the road.
Smalley v. Railroad Co., 73 S.C. 574; Rookard v. Atlantic Air Line Ry., 65 S.E. 1047; Northern Pac. Ry. v. Mentzer, 214 Fed. 11; Mayfield v. Atlantic Coast Ry., 61 S.E. 106; Wagner v. Chicago A. Ry., 106 N.E. 809; Missouri K. T. Ry. v. Beasley, 155 S.W. 183.
This is an appeal from a judgment in favor of the appellee for damages from a personal injury sustained by her, as she alleges, because of the negligence of the appellants. The defendants to the appellee's declaration are the David J. Joseph Company, Hubert Pearson and the H. Weston Lumber Company. The two last named defendants will be hereinafter designated as Joseph Company and Weston Company respectively. When the appellee finished introducing evidence and rested her case, the court sustained a motion to exclude the evidence as to Joseph Company and instructed the jury to find a verdict for it. Thereafter the case proceeded against the other two defendants, resulting in a verdict against them. A judgment was then rendered on this verdict, which judgment also included an order discharging Joseph Company from liability. Weston Company and Pearson appealed to this court, and the appellee cross appeals from the judgment in favor of Joseph Company.
Error, vel non, in the ruling of the court relieving Joseph Company from liability must be determined on the evidence then before it, for Joseph Company thereafter had no further concern with the trial of the case and cannot be charged with the evidence thereafter introduced.
The evidence for the plaintiff discloses in substance the following: The Weston Company is a corporation which owned and operated a logging road about ten miles in length, crossing a public highway. On the 22nd day of June, 1935, about 6:30 in the afternoon, the appellee was travelling in an automobile driven by another along this public road. When the automobile arrived at this crossing it was brought to a stop and the driver thereof looked and listened, but saw no locomotive or car on the railroad track. The view down the railroad track, from which the engine and car hereinafter mentioned came, was cut off by high weeds and bushes extending along the railroad right of way up to the public road. The automobile then proceeded to cross the track and was struck by a gasoline engine to which was attached a car loaded with iron rails, resulting in a severe injury to the appellee's foot. No signal of any sort was given of the approach of this engine, and no flagman was stationed on the crossing to warn travelers on the highway of the approach of this engine and cars. The brakes on this gasoline engine were defective.
On May 6th, 1935, Weston Company sold the iron rails on this road to Joseph Company by a written contract for $9.25 per gross ton, to be delivered in railway cars free at ship side New Orleans, Louisiana. $4,000 was paid by Joseph Company on the signing of this contract, the remainder to be paid at the end of sixty days therefrom. Three weeks' notice was to be given Weston Company of the arrival of the ship, the title to the rails to be in Joseph Company on the execution of the contract. The invoices for the rails were to show deduction on the freight on the rails to their destination, or be accompanied by bills of lading showing freight prepaid thereon.
Pursuant to this contract, the rails were being taken up, beginning at one end of the road, and transported over it to Picayune, where they were to be delivered to the N.O. N.E.R.R. Company for shipment to Joseph Company at New Orleans, Louisiana. Bills of lading therefor were issued by the N.O. N.E.R.R. Company to Joseph Company, as shipper, consigned to a steamship, care of Joseph Company at New Orleans. The rails in the car which the gasoline engine was pulling at the time of the appellee's injury were of the rails sold by Weston Company to Joseph Company.
Klein, for the appellee, testified that in May or June, 1935, he went to the New Orleans office of Joseph Company, in order to ascertain, for purposes of his own, whether these rails were the property of Weston Company, and while there, Fechheimer, Joseph Company's agent in charge of its New Orleans office, had a long distance telephone conversation with Pearson, at the conclusion of which he (Klein) said to Fechheimer:
"I understand that Hubert Pearson is always working for Weston Lumber Company," and he says, "He did, but right now he is working for me and my rails," and I says, "Are you sure it is your rails and not Weston's," and he says, "They are mine, I bought them on the ground."
This evidence was objected to by Joseph Company, but the Court reserved its ruling and seems not to have thereafter ruled thereon. The appellee then rested her case, and the evidence, insofar as it affected Joseph Company, was excluded and the jury was directed to return a verdict for it.
In support of her contention that the court below erred in holding that the evidence, when she rested her case, disclosed no liability on the part of Joseph Company, appellee says that it appears therefrom that Joseph Company, itself, was engaged in hauling the rails to Picayune over the logging road, and that Pearson was its servant in so doing.
The contract by which the rails were sold to Joseph Company required Weston Company to deliver the rails to Joseph Company at New Orleans, Louisiana, and this evidence was insufficient to show that the contract had been departed from, and that Joseph Company was itself engaged in taking up the rails and hauling them to Picayune for shipment to New Orleans. Fechheimer's admission, if competent, does not disclose what character of work Pearson was doing for Joseph Company — does not show that he had been employed by Joseph Company to haul rails for it. Moreover, it does not appear that making this admission was within the scope of Fechheimer's employment, but on the contrary, it affirmatively appears not to have been made during, or as a part of, the transaction of any business by him for Joseph Company, and therefore, could have no effect on the rights of that Company. No error was committed in the exclusion of the appellee's evidence, insofar as it affected Joseph Company.
Weston Company and Pearson then introduced evidence to the following effect: In addition to selling the rails of the logging road to Joseph Company, as hereinbefore set forth, Weston Company had sold the cross ties on which the rails were laid to Pearson, but when delivery thereof was to be made does not appear. Weston Company ceased to operate the logging road when the rails thereof were sold. It continued to own the land over which the railroad was laid, and gave Joseph Company permission to use it "until the rails were taken up." Under an agreement with Joseph Company it employed Pearson for and on behalf of that company to take up and haul the rails to Picayune for a stated consideration per ton. Pearson's compensation was paid him by Weston Company, which Company thereupon drew and collected a draft on Joseph Company therefor. Joseph Company also paid the railroad charges for transporting the rails from Picayune to New Orleans, both of which items of expense were deducted from the $9.25 per ton agreed to be paid by Joseph Company for the rails. The gasoline engine which Pearson was using at the time of the appellee's injury was owned by Weston Sand Gravel Company and had been loaned by it to Pearson. There were no weeds or bushes along the railroad right of way, and when the gasoline engine driven by Pearson approached the highway on the occasion in question it was running not more than five miles per hour, and while no signal was given of its approach, the noise made by the engine, because of its muffler having been cut out, was loud enough to have been heard for more than five hundred yards. Pearson stationed a man on the crossing to warn travelers thereon of the approach of the gasoline engine by waving his hat, and this he was doing as the automobile in which the appellee was riding approached the crossing. Pearson saw the automobile some distance before it reached the crossing, but thought the driver thereof would heed the warning of the flagman and not attempt to cross, and he did not realize that it would not stop until it entered the crossing just ahead of the gasoline engine, too late for him to prevent the collision. When he saw that the collision was imminent, he stepped off of the gasoline engine. The automobile then struck the engine and was dragged by it across the highway when the gasoline engine left the track and stopped.
At the close of the evidence, Weston Company and Pearson each requested but were refused a directed verdict. We do not understand Counsel to argue that the court below erred in refusing a directed verdict for Pearson, and, manifestly he was not entitled to it.
The contention of Weston Company is that it had ceased to operate the road, had lost the right so to do when it sold the rails thereof to Joseph Company, and had turned it over to that Company for use by it in transporting the rails to Picayune, which obligation the Joseph Company had assumed.
The owner of a railroad, public or private, may, by a valid sale or lease thereof to another, relieve itself from liability for the negligence of such other in the use of the railroad; but, in the absence of such a sale or lease, permission by the owner of the railroad to another to run cars over it does not relieve the owner of liability for the negligence of such other in running cars over the road. Illinois C.R.R. Co. v. Lucas, 89 Miss. 411, 42 So. 607; Estes v. Memphis C. Ry. Co., 152 Miss. 814, 119 So. 199; Illinois C.R.R. Co. v. Barron, 5 Wall. 90, 18 L.Ed. 591; 1 Elliot on Railroads (3 Ed.), sec. 541; 51 C.J. 1101.
Weston Company had not sold the road as an entirety, but only the ties and rails thereof. It continued to own the right of way (the land over which the ties and rails were laid and the right to run cars over this highway) and had the right to lay other ties and rails over this right of way, and to continue to run cars over it. The only right which Joseph Company had to run cars over this right of way and across this highway was the permission given it by Weston Company so to do, consequently the case is within the spirit and purpose of the rule immediately hereinbefore stated. The right of Weston Company to cross this highway with its railroad was burdened with the duty of observing due care when running its cars across the highway to prevent injury to travelers thereon. Whether the cars were being run by it or another with its permission is of no consequence, for, by permitting another to run the cars, it charged itself with such other's negligence in so doing.
But it is said by Counsel for the Weston Company that Pearson was not its or Joseph Company's servant for under his contract with Joseph Company he was an independent contractor, and this, for the purpose of the argument, we will assume to be true. What Pearson's exact relations with Joseph Company were is of no consequence, for his right to the use of the railroad was given him by it, and when Weston Company permitted Joseph Company to run cars over its right of way which crossed this highway, it became charged with the negligence of Joseph Company in so doing, and also with the negligence of others who were exercising this right with the consent and on behalf of Joseph Company.
The court below committed no error in refusing to direct a verdict for Weston Company.
On the evidence, no error appears in the other rulings of the court below complained of by Pearson, and we are unable to say that the verdict is excessive.
Affirmed.