Opinion of the Court. voluntarily operated by them,'- was the law of that State at the time of the accident to plaintiff and applied in this case. "Second. And in this connection the court submitted the question to the jury, under instructions not excepted to, whether the engine and tender were equipped with the apron or lap described in the proof, and whether or not the injury was the result of any defect in that regard as a proximate cause thereof, and instructed them if they found such defect to exist, and that it was the cause of the injury, the plaintiff would be entitled to recover by reason of the constitutional provision found in the laws of Mississippi above quoted in the charge." Mr. Francis Frentress and Mr. Samuel F. Rankin (Mr. J. P. Rhodes and Messrs. Estes & Frentress were also on the briefs) for plaintiff in error. Mr. Stokley D. Hays (Messrs. Neil & Deason and Messrs. Haynes & Hays were on the brief) for defendant in error. TAFT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The assignments of error seek to raise some questions of evidence, but the record is not in such a condition as to permit it. The court allowed the plaintiff when on the stand to answer certain questions put to him by his counsel in respect to the pain he suffered, and the knowledge which he had of locomotives before engaging in the service of the defendant. The questions were objected to, the objections were overruled, and no exceptions were taken to the rulings. The absence of exceptions prevents us from considering the correctness of the court's action on the objections. The main point which this writ of error is intended to present is that the clause of the constitution of Mississippi providing that "knowledge by any employé injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall be no defense to an action for injury Opinion of the Court. caused thereby" is not self-executing. It is very evident that this is the only question which the bill of exceptions was prepared to make. It is now, however, attempted to raise a different question upon the charge of the court. The charge is not given in full, and only enough appears to present clearly the point already alluded to. In the first of the two paragraphs giving a summary of the charge the court is represented as telling the jury that the clause of the constitution of 1890 applied to this case and introduced a different rule from that which would have been applied under the law of Tennessee or the common law; and by the second paragraph it appears that "in this connection," that is, in connection with the operation of the clause of the constitution of Mississippi upon the case, "the court submitted the question to the jury, under instructions not excepted to, whether the engine and tender were equipped with the apron or lap described in the proof, and whether or not the injury was the result of any defect in that regard as a proximate cause thereof, and instructed them if they found such defect to exist, and that it was the cause of the injury, the plaintiff would be entitled to recover by reason of the constitutional provision found in the laws of Mississippi above quoted in the charge." To this part of the charge of the court the defendant excepted. It is now contended that the effect of this charge was to take away from the jury the question, which was much mooted on the trial, whether the absence of the apron or lap in a locomotive was a defect in machinery. We are not able to say whether the court left this question to the jury or not from the very summary way in which the charge of the court in this respect is described, but if the court below did not leave the question to the jury it is clear from the statement in the bill of exceptions that no exception was taken to that part of the charge, because it is expressly stated that the manner in which the court submitted to the jury the questions whether the engine and tender were equipped with the apron or lap, and whether or not the injury was the result of any defect in that regard as a proximate cause thereof, was not excepted to, and that the only part of the charge to which exception was Opinion of the Court. directed was the operation of the constitutional provision of Mississippi upon the rights of the parties. It follows, therefore, that the only question we have before us in this case on the record is whether section 193 of the constitution of Mississippi was self-executing, at least so far as the clause which. provides that "knowledge by any employé injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them," and whether, if self-executing, it should be enforced in a Federal court sitting in Tennessee in an action for an injury happening in Mississippi after the constitutional provision went into effect. In Groves v. Slaughter, 15 Pet. 449, the question was whether the language of the constitution of Mississippi providing that the "introduction of slaves into this State as merchandise or for sale, should be prohibited, from and after the first day of May, eighteen hundred and thirty-three," was self-executing, or was directed to the legislature and required legislative action before it should become operative upon contracts and persons. Constitution of 1832, art. 7, Slaves, § 2. The question arose in the Supreme Court of the United States with reference to its effect upon contracts made in the State, and it was there determined by a divided court that the clause was not self-executing. Subsequently the Court of Errors of Mississippi in Green v. Robinson, 5 How. (Miss.) 80, in Glidewell v. Hite, 5 How. (Miss.) 110, and in Brien v. Williamson, 7 How. (Miss.) 14, refused to follow the decision of the Supreme Court of the United States and held that the clause was selfexecuting. Thereafter another case involving the effect of the clause upon contracts made before the decision of the Supreme Court in Mississippi was considered in Rowan v. Runnels, 5 How. 134, and the Supreme Court of the United States refused to change its ruling with respect to these contracts entered into before the decisions of the Supreme Court of Mississippi. An examination of the case of Groves v. Slaughter and of Opinion of the Court. the reasoning of the court leaves no doubt that the question for consideration is one of the intention of the persons framing and adopting the constitution. There is nothing in Groves v. Slaughter to justify the claim that a constitution may not contain self-executing provisions. It may be conceded that it is usually a declaration of fundamental law, and that many of its provisions are only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, and that many are mere restrictions upon the power of the legislature to pass laws; but that it is entirely within the power of those who frame and adopt the constitution to make any of its provisions self-executing is too clear for argument. Hence it is a question always of intention to be determined by the language used and the surrounding circumstances. Considering the constitutional clause in question in this light, we have no doubt that it was self-executing. In the first place the language of the particular clause in question is prohibitory and is in the exact form which the legislature, were it enacting such a provision into the law, would use in a command to the courts. Then the whole section is of that detailed character which characterizes legislation intended to operate on the courts rather than in the form of those general provisions directed to the legislature which usually cover an entire subject-matter in a few words and fix only limits of action and vest a wide discretion as to the manner in which the mandate of the constitution shall be carried out. More than this, there is language in the section which is inconsistent with the view that it is not self-executing. Thus near the end of the section occurs this clause: "This section shall not be construed to deprive any employé of a corporation or his legal or personal representative of any right or remedy that he now has by the law of the land." If the latter clause were not self-executing then this particular provision in it should read, "and legislation in accordance with this section shall not be construed to deprive any employé in a corporation or his legal or personal representatives of any right or remedy that he now has by the law of the land; for if the entire article were not self-executing, then it would Opinion of the Court. not operate directly on any right or remedy previously existing, and the protection of the proviso would naturally be directed to the legislation executing the mandate rather than to the mandate itself. Again, the final clause of the article excludes any other construction than that we have given. It is, "The legislature may extend the remedies herein provided for to any other class of employés." This certainly implies that so much of the article as precedes the clause actually provides remedies for those mentioned in it, and leaves to the legislature power to enlarge the benefits of the article by applying it to others than those named in the article. But it is said that the fact that the legislature of Mississippi in 1892 treated this as a mandate to the legislature to pass legislation giving the remedies therein described is a legislative construction of the article to the effect that it was not self-executing. We do not so regard it. On the contrary, when the legislature of Mississippi came to embody this in the statute it adopted the exact language of the article of the constitution, omitting only that clause of it which provided that the legislature might extend the remedy to other classes of employés. This shows that in the opinion of the Mississippi legislature the clause was sufficiently specific to operate upon the rights, remedies, and persons therein referred to without further provision or detail. The conclusion which we have reached is in accordance with the decision of the Supreme Court of Mississippi, and this settles the question for us. In Welsh v. Alabama & Vicksburg Railway Co., 70 Mississippi, 20, it appeared that Welsh was a switchman in the employ of the Alabama and Vicksburg Railway Company, his duty being to ride upon the switch-engine, and to open and close switches and couple His usual station was on the footboard of the engine. He was injured by falling from the footboard while engaged in the performance of his duties, and brought his action to recover damages on the ground that the fastening of the footboard was insecure by reason of the negligence of the company. The court gave a peremptory instruction for the defendant on the ground of contributory negligence of the cars. |