Nashville, C. & St. L.R. Co. v. Gann

• Decision Date: 15 October 1898
• Citation: 47 S.W. 493,101 Tenn. 380
• Parties: NASHVILLE, C. & ST. L. R. CO. v. GANN.
• Court: Tennessee Supreme Court

47 S.W. 493

101 Tenn. 380

NASHVILLE, C. & ST. L. R. CO. v. GANN.

Supreme Court of Tennessee.

October 15, 1898

Appeal from circuit court, Marion county; Floyd Estell, Judge.

Action by G. W. Gann against the Nashville, Chattanooga & St. Louis Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

W. D Spears, for appellant.

W. T Murray and B. E. Tatum, for respondent.

WILKES J.

This is an action for personal injuries, tried by the court and jury and resulting in a verdict and judgment for plaintiff for $1,250. The defendant railroad has appealed and assigned errors.

The first error assigned is to the admission of certain statements made by Cox immediately after the accident occurred, as to the cause of it and how it happened. It is insisted they were not part of the res gestæ, and were therefore inadmissible. We need not pass upon this assignment, as the statements made by Cox would not change the result of the case, or place it in any different light than if they had been rejected.

It is next insisted that the negligence which caused the accident in this case was the personal negligence of Cox, and not official negligence, and that the court not only failed to make the proper distinction between the two classes of cases but refused to charge a request which would have pointed out the difference. It appears that Cox was a section boss, and Gann was a section hand under him; that Cox had authority and control over Gann; that he was subject to his orders; that Cox had the right to employ and discharge at will, and had complete control of the section, and hands upon it. It appears that Cox one evening ordered the section hands to get on a hand car to go to a point on the road known as "Ramsey's Bottom," to measure up a lot of old iron. Cox, as was his custom, took a position at the brake for the purpose of holding it and guiding the movements of the car. Gann and the other hands under direction of Cox operated the propelling lever which drove the car. The accident occurred on a steep downgrade, and the car was running at about 15 miles an hour. The brake was a peculiar one, and appears to have been of Cox's own invention. The main insistence is that Cox negligently applied, or failed to apply, this brake in such a manner as to suddenly check the car. It appears that it acted upon a principle the reverse of the ordinary brake, and that it was necessary to hold it off or it would apply itself automatically, and immediately stop the car unless held off. The sudden checking of the car, in consequence of Cox's letting the brake loose, forced the lever down on the plaintiff's knee, and drove the leg bone down into the ankle, permanently injuring the plaintiff. He fell from the car, and it was at once stopped, and Cox went back to where he was lying, and, according to the proof of two witnesses (though contradicted by Cox himself), stated that he did not go to do it; that his coat was about to get caught in the wheel, and he reached back for it with his left hand, and that threw him around so that the brake handle came out from under his right arm, and the brake went on. This is the statement to which objection was made. There is nothing in it prejudicial to the defendant in this case, upon its theory.

It is insisted that Cox, in operating this brake, was a fellow servant with Gann and the other hands, not filling the place of the master, but, for the time being, in the work and doing the service of a servant. The court charged the jury, in substance, that, under the facts as thus stated, Cox and Gann were not fellow servants, and the defendant would be liable for Cox's negligence. He was requested to charge, in substance, the reverse of this proposition, and declined. It has been held in this state that a section boss and his subordinates occupy the relation of master and servant as to each other. It is evident, however, that a man may occupy the position of a master or vice principal in some respects and in the doing of some acts, and that of a fellow servant in other respects and in doing other acts. If a superior undertakes to do the work of a fellow servant, and puts himself in the place to do the work of a fellow servant, he becomes one as to that particular work, and his negligence in such case is that of a fellow servant, and not that of a vice principal.

An individual may act in a dual capacity; not, it is true, at the same moment and in the same act, but he may, while generally acting as vice principal, and standing in the place of a master, lay aside that character and authority, and occupy for the time being the place and do the work of a fellow servant; and, while thus engaged in the particular act, he is, in the eye of the law, a fellow servant, and the principal is not responsible for his negligence. This distinction is clearly pointed out in the case of Railroad Co. v. Bolton, 99 Tenn. 277, 41 S.W. 442 and the cases there cited. See, also, Allen v. Goodwin, 92 Tenn. 385, 21 S.W. 760. The distinction is plainly and forcibly stated in Stockmeyer v. Reed, 55 F. 259, as follows: "The question is not one of rank. If the superintendent was acting at the time in the capacity of a fellow servant, and his negligence caused the injury, the master is not liable. Notwithstanding his superior power, such superintendent is still a servant; and, in respect to such acts and work as properly belong to a servant to do, he is, while performing them, discharging the duties of a servant." See the same case on appeal, 20 C. C. A. 381, 74 F. 186. The same distinction is held in Arkansas ( Railway Co. v. Torrey, 58 Ark. 217, 24 S.W. 244, and cases there cited); so, likewise, in Indiana (Nall v. Railway Co., 129 Ind. 264, 28 N.E. 183, 611; Taylor v. Railroad Co., 22 N.E. 876). New York, Pennsylvania, Michigan, and other states...