Louisville, New Orleans & Texas R. R. v. Conroy

Citations

• 63 Miss. 562

Syllabus

<p>1. Railroad Company. Whether engineer and contractor’s laborer are fellow-servants. Case in judgment.</p> <p>M. contracted with a railroad company to do certain grading for it. The company furnished an engineer and a train to move the dirt. The engineer was engaged and paid by the company, and was under its control and direction, except that M. gave the signals when the train was to move. While such train was being run under the exclusive management of the engineer, except in the particular just indicated, it ran over a cow, was thrown from the track, and C., a laborer employed by M. to throw dirt to and from the train, was injured. Held, that the engineer, being the servant of the railroad company, was not a fellow-servant with C., and an action by the latter against the railroad company for the injury thus sustained cannot be defeated by the defense that the plaintiff and the engineer were fellow-servants.</p> <p>2. Same. Negligence of servant. Dangerous employment of person injured.</p> <p>Nor can the defendant, in such case, escape liability on the ground that the plaintiff, at the time of receiving the injury complained of, being engaged in a service known by him to be dangerous, thereby assumed the risks incident to such service. Dangerous occupations demand correlatively greater care on the part of all persons engaged in them. But if one so engaged be injured by the negligence of the servant of a master not freed from liability therefor by some contractual relation, such master cannot avoid responsibility because the injured person was knowingly engaged in a dangerous employment.</p> <p>3. Same. Fellow-servant. What constitutes.</p> <p>Those only are fellow-servants who serve the same employer and are subject to the same control. Persons engaged in a common pursuit are not necessarily fellow-servants.</p> <p>4. Same. Injury caused person by strildng cow. Burden of proof.</p> <p>In an action against a railroad company for an injury to the plaintiff occasion