Yazoo & Mississippi Valley Railroad v. Parker , 88 Miss. 193 ( 1906 )

Truly, J.,

delivered the opinion of the court.

It is perfectly manifest that the exception expressed in sec. 193 of the constitution, which, as to conductors and engineers in charge of dangerous or unsafe engines or cars voluntarily operated by them, still permits their knowledge of the dangerous or defective condition of such cars or engines to be interposed to prevent their recovery for injuries caused thereby, does not apply to other classes of employes. Certainly not to a section, foreman, as was the appellee in the instant case. Buckner v. Railroad, 72 Miss., 878 (18 South. Rep., 449). The exception referred to is applicable solely to “conductors and engineers,” as those terms are generally understood. The reason of the exception was the hope of instilling into the minds of the specially excepted operatives a feeling of extra caution, by denying them the right of recovery which was expressly'granted other employes who might operate other machinery with full knowledge of its dangerous and defective condition. This provision of the constitution was based upon grounds of public policy and was designed for the protection of human life, so often solely dependent upon the care, caution, and skill of engineers and conductors. Railroad v. Guess, 74 Miss., 170 (21 South. Rep., 50). The very terms of the constitutional provision that knowledge of such defective or dangerous condition should constitute no defense, except as to certain named classes, necessarily conveys the intention of the law not to permit such knowledge to defeat recovery by others. We cannot assent to the contention that a section foreman in charge of a hand car is a conductor, within the meaning intended to be conveyed by the constitution.

The sole question remaining for consideration and determination is whether, under the facts, the appellee was guilty of such reckless negligence as should have prevented his recovery as a matter of law and authorized' the court to sustain the motion of appellant to exclude the testimony in his behalf. The defense predicated solely of the knowledge by the employe of the defective or dangerous condition of the machinery or other appliance used or operated by him was abolished by the constitution, with the exception already adverted to. The defense of contributory negligence to actions for injuries caused by such defective or dangerous appliances, ways or means, if not absolutely abolished fey that instrument, was materially modified and abridged. As said by this cóiirt in Welsh v. Railroad, 70 Miss., 25 (11 South. Rep., 723) : “Sec. 193 of the present constitution practically destroys this defense [contributory negligence by using defective appliance after knowledge of unsafe condition] in cases where no willful or reckless negligence can be predicated of the conduct of the injured and complaining employe. “The change is radical, sweeping, unambiguous, and we must enforce it as written.” It is true that subsequently, in the Buckner case, supra, it was held that the defense of contributory negligence in such cases was not absolutely destroyed; that such knowledge on the part of the injured employe might still be shown, not as a defense, but as a fact and circumstance to be considered by the jury in determining whether, under the proven circumstances attendant upon the injury as shown by the proof, the defense of contributory negligence had been established to their satisfaction. But the Buckner case is expressly stated as not being in conflict with the Welsh case, which is therein reviewed. So the established rule is: If, knowing the unsafe, defective, or dangerous condition, the complaining employe be proven guilty of reckless negligence in the use of the appliance at the time of the injury, he cannot recover. But under any view, and in all cases, the question of what constitutes contributory negligence is always, in case of conflict, a question of fact, Avhich must be submitted to the decision of the jury. This was done in the instant case, and the issue of fact was decided in favor of the appellee; the jury deciding that his conduct was such as an ordinary prudent man should have used under the circumstances surrounding him. The instructions granted the appellee fairly submitted this matter to the jury. That for the appellant propounded the converse of the proposition correctly. The instructions refused were correctly denied. They conflicted with the views hereinbefore announced.

The judgment is affirmed.