Lockman v. Alabama & V. Ry. Co. , 116 Miss. 772 ( 1917 )

Smith, C. J.,

delivered the opinion of the court.

Appellant instituted this suit to recover damages for an injury alleged to have'been sustained by him while employed by appellee, because of the negligence of a fellow servant. At -the close of the evidence a motion to exclude was sustained, and the jury instructed to find for appellee, and there was a verdict and judgment accordingly. According to this evidence, appellant, with the assistance of a number of fellow servants, was engaged in loading iron rails upon one of appellant’s cars. These rails were being taken from an abandoned track, running from appellee’s road to a quarry several miles away. While one of the rails was being placed in the car it was given an “unusual” or sudden jerk by some of appellant’s fellow servants, which caused it to fall upon and injure his leg. Why this sudden or “unusual” jerk was given does not appear. There was no evidence of an engine being attached to the car at the time it was being loaded, or that it was to be moved by steam, electric, gas, gasolene, or lever power, other than the presumption arising that it was to be moved by appellee’s usual motive power.

The peremptory instruction should not have been given, for the reason that the jury would have been warranted in finding that appellant was injured because of the negligence of a fellow servant, while engaged in loading a car for transportation oyer appellee’s railroad,, so that the case falls within chapter 194, Laws of 1908 (section 6684, Hemingway’s Code), and is rnled by Hunter v. Ingram-Day Lumber Co., 110 Miss. 744, 70 So. 901, and Railroad Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675.

Reversed and remanded.