National Fertilizer Co. v. Travis

• Citation: 49 S.W. 832,102 Tenn. 16
• Parties: NATIONAL FERTILIZER CO. v. TRAVIS.
• Decision Date: 14 January 1899
• Court: Supreme Court of Tennessee

49 S.W. 832

102 Tenn. 16

NATIONAL FERTILIZER CO. v. TRAVIS.

Supreme Court of Tennessee.

January 14, 1899

Appeal from circuit court, Davidson county; John W. Childress Judge.

Action by F. C. Travis, administrator of the estate of John Loomis deceased, against the National Fertilizer Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

E. H East and J. S. Pilcher, for appellant.

Lellyett & Barr and Steger, Washington & Jackson, for appellee.

WILKES J.

This is an action for damages for the negligent killing of John Loomis, an employé of the defendant company. The deceased, at the time of the killing, was engaged in putting belts upon three pulleys, and was killed in consequence of his clothing being caught upon the pulley shaft, and wound around it in such manner as to bind him to it, and cause him to revolve with it, thus mangling him and dashing him to pieces. There were three trials before the court and jury, in two of which there was a verdict for the plaintiff, which was set aside by the trial judge, because not sustained by the weight of the evidence. Upon the third trial there was a verdict for $6,000, and the trial judge, on motion for new trial, refused to set it aside, though dissatisfied with the evidence, believing that he had no power to set aside the third verdict. Accordingly, judgment was rendered, and the defendant company has appealed, and assigned quite a number of errors. The recovery is insisted upon on the ground that the engineer was incompetent to operate the engine and run the machinery; that he started the engine at full speed without giving timely warning, and without receiving a signal from the deceased that he might safely increase the speed; and that the signaling appliances were defective and out of order. While there are a great number of errors assigned, the defense, generally stated, is that the deceased was guilty of contributory negligence in wearing an overcoat which made the work about the machinery hazardous, and this, it is contended, was the proximate cause of the injury; that there was no evidence of general incompetency of the engineer, and none whatever of any specific negligence at the time of the killing, which caused or proximately contributed to it; and it is insisted on the whole case that there is no evidence to support the verdict.

Much discussion is had in the case upon the subject of superior and fellow servants. Plaintiff insists that Fain, the engineer in charge of the machinery, was the superior of Loomis, and that the latter was so far under his control as to be an inferior servant with Fain, not only as his superior, but occupying the relation of vice principal as to him. We are of opinion the court did not fully charge the law applicable to the facts of this case upon this subject of superior, inferior, and fellow servants. There is evidence to show that Fain was foreman, and, as such, had control and supervision over Loomis; that he employed and discharged the hands generally, and usually directed them in their work; and there is evidence that Loomis was directed by Fain to do the particular work in which he was engaged when he was injured. But there is evidence also showing that Fain was filling several positions at the same time; that is, he was shipping clerk, foreman, and engineer. The law is well settled that an employé may occupy the place of the principal as to some duties, and as to others be simply a fellow servant. For his official negligence as vice principal his principal would be responsible; for his individual acts of negligence as fellow servant the principal would not be liable. This question has been recently before this court, and maturely considered, in the case of Railroad Co. v. Gann, 47 S.W. 493; and the rule is there attempted to be fully stated, and the authorities bearing on the subject. See, also, Knox v Railway Co., Id. 491, and Railway Co. v. Law son, Id. 489. In the case at bar it is evident that, if the deceased was killed by the negligence of Fain while in discharge of his duties as engineer in operating the engine, it was important that the relation of Fain, as such engineer, to Loomis, be fully and correctly stated, and special instruction was asked upon this point, but was not given by the court in the explicit terms asked, and which were demanded by the facts of the case. It is evident that Fain, in this case, if negligent at all, was negligent in operating the engine, and in either failing to give or to wait for the proper signals prescribed by the rules of the company. Now, in the running of the engine, he was not in any way the superior, but was the fellow servant, of Loomis. According to plaintiff's theory, that Fain was to start up the engine only upon notice from Loomis, it is evident that he was under the direction as to that matter of Loomis, and Loomis was not under his direction. Upon defendant's theory, then Loomis and Fain were both operating under rules of the company. Fain was still under Loomis' control, for Loomis could signal him to stop or run slow, and it was the duty of Fain, as engineer, to obey Loomis' direction, and they were fellow servants. In the case of Boyce v. Fitzpatrick, 80 Ind. 526, it appeared that the plaintiff was injured while employed under the direction of the superintendent and manager, who was at the same time in charge of the machinery in the defendant's factory, through the negligence of the superintendent; and it was held that he was the fellow servant of the employé, and not a superior or vice principal. See, also, Bailey, Pers. Inj. §§ 1963, 2064. We are of opinion that, the facts being stated, the question of whether a person is a fellow servant or a superior is one of law for the court, and that, upon the facts as contended for by the plaintiff in this case, Fain, in running the engine, was the fellow servant of Loomis while the latter was engaged in adjusting the machinery or belts; and the court should have so charged, and...