13 S.W. 691 (Tenn. 1890), Powell v. Virginia Const. Co.

Citation:13 S.W. 691, 88 Tenn. 692
Opinion Judge:LURTON, J.
Party Name:POWELL v. VIRGINIA CONST. CO.
Attorney:M. B. Frizevant, for appellant. J. H. Watson, for appellee.
Case Date:April 29, 1890
Court:Supreme Court of Tennessee
 
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Page 691

13 S.W. 691 (Tenn. 1890)

88 Tenn. 692

POWELL

v.

VIRGINIA CONST. CO.

Supreme Court of Tennessee.

April 29, 1890

Appeal from circuit court, Shelby county; L. H. ESTES, Judge.

Action by John W. Powell against the Virginia Construction Company. Defendant obtained judgment. Plaintiff appeals.

M. B. Frizevant, for appellant.

J. H. Watson, for appellee.

LURTON, J.

The defendant is a corporation engaged in the business of doing railway construction under contract. It had a contract for the construction of the Tennessee Midland road from Memphis to Jackson. It sublet a portion of the tracklaying to a firm of contractors known in the record as Meridith & Horton. The plaintiff, while the general servant of defendant, and while acting as a brakeman, was injured in making a coupling, and sustained the loss of an arm. The negligence alleged was that of Meridith, one of the subcontractors; and the case turns upon the question of the liability of defendants for his negligence. The contract between Meridith & Horton and defendant was in the following words and figures:

"Virginia Construction Company. Articles of agreement (signed in triplicate) made and concluded this 15th day of November, 1887, by and between J. P. Meridith and J. R. Horton, under the firm name of Meridith & Horton, parties of the first part, and the Virginia Construction Company, party of the

Page 692

second part: Witnesseth, that the party of the first part does hereby agree to lay the track of the Tennessee Midland Railway Company east from a connection with the M. & C. R. R. tracks at or near McGhee's Junction as far as the chief engineer of the party of the second part may determine and order, for the sum of four hundred and seventy-five dollars ($475.00) per mile, including all handling and rehandling of materials, to-wit:

For unloading rails, ties, and fastenings on arrival per mile .......... $15 00

Reloading and unloading same during progress of work .................... 60 00

Distribution of ties ................................................... 125 00

Laying and surfacing track ............................................. 275 00

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Total,--laying and surfacing per mile, complete, including all

handling of materials of every kind ................................. $475 00

--It is understood that the party of the second part will furnish push-cars, locomotive, flats, and engineer, fireman, and one brakeman; that there shall be two thousand eight hundred and sixteen (2,816) ties to the mile, full spiked; that the fish-plates shall have four (4) bolts to the joint, carefully adjusted; and that the track shall be surfaced with the best material found contiguous to the roadbed, but material for surfacing is not to be taken from the embankments, but procured outside of the slopes; and, where necessary, said material shall be hauled. In crossing the river bottoms, or at other places where surfacing material is difficult to get, such extra allowances may be made as the chief engineer deems equitable. The parties of the first part hereby agree to put in the cattle-guards upon that part of the road where the track is laid by them as per plan furnished, including excavation of pit and all materials for guard and fencing, for $45.00 each. The lumber used in cattle-guards to be of heart white oak, heart past oak, or heart yellow pine, free from all defects calculated to impair strength; the whole to be done, in a thorough and workman-like manner, to the satisfaction of the chief engineer of the party...

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