
    Lockman v. Alabama & V. Ry. Co.
    [77 South. 793,
    Division A.]
    
      1. Master and Servant. Question for jury. Application of fellow servants’ doctrine. Laws 1908, chapter 194. Hemingway’s Code, section 6684.
    Where an employee of a railroad company while employed in loading rails upon a flat car was injured because some of his fellow servants gave an unusual or sudden jerk to the rail which they . were lifting to place upon the car which caused it to fall and injure his leg and there was no evidence as to why such sudden and unusual jerk was given in such case a peremptory instruction for the defendant was erroneous.
    2. Same.
    In such case the jury would have been warranted in finding that plaintiff was injured because of the negligence of a fellow servant while engaged in loading a car for transportation over defendant’s railroad so that the ease would fall within chapter 194, Laws 1908 (Hemingway’s Code, section 6684), giving railroad employees the same rights and remedies for injuries caused by an act or omission of the railroad company as are allowed by laws to other persons not so employed.
    3. Same.
    In such case where there was no evidence that an engine was attached to the car at the time it was being loaded or that it was to be moved by steam, gas, gasoline, or lever power, the presumption arises that it was to be moved by the railroad •company’s usual motive power.
    Appeal from the circuit court of Rankin county.
    Hon. J. D. Carr, Judge.
    Suit by Philip Lockman, against the Alabama & Vicksburg Railway Company. From a judgment on a peremptory instruction for defendant, plaintiff appeals.
    The facts are fully stated in the opinion of the court.
    
      S. L. McLaurin and Robert Powell, for appellant.
    The learned counsel for appellee with his usual candor practically admits that the evidence in this case makes out a prima-facie case of negligence, but he seeks to avoid liability on the ground that the negligence shown was that of a fellow servant. To this we reply. The- Acts of 1908, chapter 194, which reads as follows: Fellow servant rule abolished as to actions by railroad employees, etc. Section 1. Every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or others of their employees as are allowed by law to other persons not so employed.
    But our learned friend replies that this does not protect us because, “we were not engaged in a labor peculiarly incident to the railroad business nor inherently dangerous and had no connection whatever with the operation of railroad locomotives, car or trains.
    Now while we think the gentleman entirely too narrow in his construction of the scope of this statute, we will still meet him on his own ground. At the time of the accident plaintiff was an employee of the defendant railroad company, and was engaged as a section hand in tearing up a part of its sidetrack and in loading the iron rails on the company’s flat car for transportation to other points.
    We ask then is not the removing and shipping of iron rails from one point on the railroad to another and loading of railroad cars for transportation, connected with the operation of railroad locomotives, cars or trains ?
    How could locomotives or cars run if the rails were not laid and properly kept in repair? or what use for cars or trains to run if not loaded? But my friend says that loading cars with iron rails is not inherently dangerous.
    Our supreme court in the case of Hunter v. Ingram-Day Lumber Go., 110 Miss. 748 says: “The defendant company, by whom the plaintiff was employed owned and operated the railroad in question. This railroad was equipped with engines and cars propelled by steam and running on tracks, and in so far as the equipment is concerned it is certain that appellant’s employer’s outfit was such as is contemplated by the statute. The entire system that appellee had in operation at the time the appellant was injured was an arrangement to load ears that were propelled by steam and rnn on tracks and tbe plaintiff at tbe time of bis injury was engaged in loading one of appellant’s cars on tbe railroad in question. It is not necessary in order for a person to recover under tbe terms of tbe Fellow Servants’ Statute of 1908, that such person be injured by tbe actual running or movement of tbe cars, tbe legislature, acting within its discretion, bas determined that all persons working in and about tbe operation of railroad trains are engaged in a hazardous business and are entitled to tbe protection afforded by the statute in question. All work in and around tbe operation of railroad trains is necessarily dangerous, whether that work bas to do with tbe movement of cars or tbe loading of same or any other employment in tbe operating department of a railroad.”
    But why gild refined gold or paint tbe lily? We refer tbe .court to two decisions of this court which cover every point in appellee’s brief and decide adversely to bis contention, to-wit: Easterling Lumber Go. v. 8. W. Pierce, 106 Miss. 744, in which the court will find tbe matter exhaustively treated with numerous citations from tbe United States supreme court and other states in which section 193 of tbe Constitution and tbe subsequent acts and decisions construing them are fnlly discussed.
    We think tbe case should be reversed and remanded for a new trial.
    
      R. H. & J. H. Thompson, for appellee.
    Tbe kindly terms in which appellant’s reply brief affirms that we have practically admitted that tbe testimony made out a prima-facie case of negligence are appreciated, but appellant’s counsel failed to note that whatever admission of tbe kind can be inferred from our language was made only by way of argument, our contention having been that, should tbe court find that the negligence of the railway company had been proved even prima-facie, still plaintiff is not entitled to a recovery. If the language of our brief be broader than this it was inadvertently made so.
    We insist that the mere statement by the witness that a sudden jerk was made in moving the iron rail does not itself prove negligence. Such a statement is nothing more than the opinion of the witness. Men may and do differ about the character of the same act as to whether a jerk were usual or unusual; and in this case the plaintiff himself testifies that jerks of the same sort were frequent in handling the rail’s in question and that no complaint was made of them. This proves that the jerk in question was a customary one.
    The case of Hunter v. Ingram-Day Lbr. Go., 110 Miss. 744, 70 So. 901, upon which appellant’s counsel seem confidently to rely, is not adverse to our contention. The opinion in that case delivered by Judge Potter distinctly recognizes the scope and effect of the decision of this court in the Bradford Construction Company case and does hot disapprove it. Speaking in that opinion of the Act of 1908, the opinion says:
    “The intent and purpose of the Act of 1908, were to extend to the employees of railroads other than commercial railroads the same protection that it extended by section 193 (of the Constitution) to certain classes of employees of commercial railroads. In other words, it was the intention of the legislature in passing this act to put all employees employed in and about the dangerous business of railroading into the same category with reference to the fellow servant rule.”
    This is precisely the same as an affirmation that the constitutional provision (Sec. 193) was not enlarged or changed but its application pimply extended' to embrace the employees of railroads (such as logging railroads) other than commercial ones. So far the decision is in appellee’s favor and not against our contentions.
    
      The opinion in the Hunter-Ingram-Day ease then proceeded to a statement of the kind of business in which Hunter, the injured employee, was engaged at the time of his injuries. The lumber company was found by the court to have been operating a railroad equipped with engines and ears propelled by steam and running on tracks and, in so far as the equipment was concerned, it was certain that the lumber company’s outfit was such ■ as is contemplated by the statute. Hunter was injured while.loading a car which was run on tracks but the loading process itself was accomplished by the use of appliances propelled by the dangerous agency of steam. The court having so found, affirmed that: “The legislature, acting within its discretion, has determined that all persons working in and about the operation of railroad trains are engaged in a hazardous business and are entitled to the protection afforded by the statute in question. All work in and' around the operation of railroad trains is necessarily dangerous, whether that work has to do with the movement of ears or the loading of same or any other employment in the operating department of the railroad.”
    The first sentence in the last quotation, from the opinion shows distinctly that the court had in mind the operation of railroad trains, whether belonging to commercial railroads or to logging railroads, and the last sentence from the quotation was uttered in respect to the same dangerous business. Hunter was injured while employed about a work which was being carried on by steam power. The appellant in this case was injured in a work in which was not used either steam, gas, gasolene, or lever power or any other power mentioned in the statute. It would be to extend the statute beyond its terms and, we say it with due respect,.judicial legislation, to hold that a case where hand power only was used in the work is within the statute.
    
      The court did not in the Hunter-Ingram-Bay case decide any such a proposition and, while the language of Judge Potter may he too broad, yet it must be interpreted in the light of the facts of the ease before him. What Judge Potter meant to say was that all work in and about the operation of railroad trains is necessarily dangerous when carried on by steam, gasolene, electric, etc., power. He did not mean to interpolate into the statute the words “hand power.”
   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.  