Matthews v. New Orleans & Northeastern Railroad , 93 Miss. 325 ( 1908 )

Fletcher, J.,

delivered the opinion of the court.

There was evidence offered in this case on behalf of the plaintiff tending to show that Matthews, who was a brakeman in the employ of the defendant company, was killed by a slowly backing train while engaged in setting out a car on an industrial track at Garriere; that the coupling appliances on the particular car being handled were so defective as to require the flagman to go between the cars in order to do the uncoupling; that the defendant company had some of its frogs blocked and some unblocked, and that the frog at the point where the accident happened was unblocked on the day of the accident; that certain circumstances indicated that Matthews caught his feet in this unblocked frog, and thereby lost his life. It was further shown that, while the rules of the company forbade all employes from going between moving cars, yet that this rule was very commonly disregarded, and that, owing to the grade where the switch was located, the uncoupling could not be made unless the train was actually in motion, and that, by reason of a curve in the track, the engineer could not have seen Matthews, when the engineer testifies that the brakeman climbed on the moving car. On the part of the defendant there was no satis factory showing that the rule relied on was ever certainly brought to the attention of Matthews. Clearly there was a failure to prove that any conductor or yard foreman ever caused this rule to be read by Matthews, as the rule itself required,

In the light of the evidence thus briefly rehearsed, we - cannot say as a matter of law that the brakeman was guilty of such contributory negligence as would preclude recovery. Of course, employees must not wilfully disregard the rules of the company, but liability cannot be avoided solely on the ground that, a rule ha.s been violated, unless the company is, itself without fault in the promulgation of the rule, not shown to have been brought to the actual notice of the employee. To say the least of it, it was for the jury to say whether this rule was known to Matthews, or whether, by the exercise of reasonable diligence on his part, it could and should have been known, and, further, whether by reason of the frequent disregard of the rule by employes, this rule could be said to have been virtually abandoned. White v. Railway Co., 72 Miss. 12, 16 South. 248. Upon the subj ect of unblocked frogs, we feel it o-ur duty to say that this question was carefully considered by this court in the case of the St. Louis & San Francisco R. Co. v. Nickerson, affirmed without a written opinion June 29, 1908. That case was almost identical on its facts with the instant case. There, as here, it was the custom of the company to block some of its frogs and leave others unblocked. There, as here, the party injured was a brakeman who caught his foot in an unblocked frog. There, as here, there was involved a rule of the company which was shown to have been commonly disregarded. In that case, however, all the issues were submitted to the jury,- and a judgment based on $7,500 verdict was affirmed. In that case, upon the subject of unblocked frogs, this court approved the doctrine contended for in 4 Thompson on the Law of Negligence, §§ 4324, 4320. It is there said:

“That a railroad company is liable in damages to its employees who themselves have been guilty of no fault for its negligence in having its switches so constructed as not to be reasonably safe, having reference to the nature of railway switches and the dangers which necessarily attend them, must be regarded as a truism, following from the general doctrines stated and illustrated in this chapter. The observance of the rule of reasonable care is demanded of the company, to the end that its switches shall be so constructed without impairing their efficiency as switches, that its employees may pass over them in the discharge of their duties without danger.

“The decisions of the courts have been very generally to the effect that for a railway company to fail to block its frogs or switches in consequence of which failure its employees get their feet caught therein and are killed or maimed, does not constitute actionable negligence, but that the risk of injury from this source is one of the risks of the service which the employee accepts. But this is not the universal doctrine, nor is it worthy of the least commendation. The better doctrine is that a railroad company owes its employees the duty of so maintaining the blocking in the space between the guard rails and the main rail that the heels aud soles of their boots will not be caught therein and where there was evidence tending to show that the defendant was guilty of negligence in that respect by reason whereof a. switchman caught his foot between the guard rail and the mam rail and was run over, and there was no evidence on which it. could be held as a matter of law that the deceased assumed the-risk or was guilty of contributory negligence, it was held that the trial court properly refused to take the case from the jury.”

We are bound to conclude that the peremptory instruction in-this case should not have been given, but that the case should-have gone to the jury on proper instructions.

Reversed and remanded.