Alabama Great Southern R. Co. v. Baldwin

• Decision Date: 12 October 1904
• Citation: 82 S.W. 487,113 Tenn. 409
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. BALDWIN.
• Court: Tennessee Supreme Court

82 S.W. 487

113 Tenn. 409

ALABAMA GREAT SOUTHERN R. CO. v. BALDWIN.

Supreme Court of Tennessee.

October 12, 1904

Error to Circuit Court, Hamilton County; M. M. Allison, Judge.

Action by L. Baldwin against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Shepherd & Frierson, for plaintiff in error.

Smith & Carswell, for defendant in error.

SHIELDS J.

The defendant in error, L. Baldwin, a brakeman in the employ of the plaintiff in error, while attempting to make a coupling in the operation of one of its trains, through the negligence of Edgar Fuller, conductor in charge of the train in prematurely signaling the engineer to back his engine and a car attached for the purpose of making a coupling, had his arm caught between the bumpers of the cars to be coupled, and crushed, and brought this suit to recover the damages sustained by him, and recovered judgment.

The contention of the plaintiff in error is that Edgar Fuller when he signaled the engineer, was not acting in his official capacity as conductor, but as a fellow servant of the defendant in error, and that it is not responsible for the negligence of which he was guilty while so acting.

There is no controversy as to how the injury was sustained. The conductor and his crew were engaged in making up a freight train, and were attempting to couple a car attached to the engine to one on the side track; both of the cars being equipped with automatic couplers. The first effort failed and another was being made when the injury was inflicted. The declaration correctly states the facts in relation to the last effort to make the coupling in these words:

"Plaintiff in the discharge of his duty thereupon went in between said cars which were then standing still, one coupled to the engine, and proceeded to adjust the said couplings by opening the 'knuckle' thereof, and to otherwise set the two drawheads so that the two cars might be properly coupled. While the plaintiff was standing in between the two said cars, entirely out of sight of the engine, and while he was endeavoring to adjust the said couplings in a proper manner, acting in a careful manner, and in the proper discharge of his duties, the defendant's conductor, Edgar Fuller, then and there the immediate superior of plaintiff, carelessly, negligently, and wrongfully signaled to the engineer to shove up the car which was attached to the engine upon and against the car to which it was to be coupled, although the said conductor knew, or by the exercise of ordinary care should have known, that the plaintiff had not adjusted said drawheads and was not ready for said coupling to be made. The engineer, upon receiving said signal from the said conductor, thereupon pushed on said car, as it was his duty to do in response to said signal, and the plaintiff's hand and arm was then and there caught in between the drawheads, deadwoods, bumpers, or ends of said two cars, and was crushed and mangled in and between said drawheads."

It also appears in evidence that the defendant in error could have given the signal to the engineer to back the engine and car or to another brakeman to be repeated to the engineer, or to the conductor, for that purpose, and the engineer would have obeyed it. In other words, the order to the engineer to move his train backward or forward in making a coupling does not necessarily have to be given by the conductor, but may be given by a brakeman making the coupling; but the conductor may take immediate charge and direction of the matter, and give all necessary signals and orders, which Conductor Fuller did on this occasion.

The conductor of a train is the superior in authority and grade in every train crew, and has charge of the train and its operations, and all the other members of the crew are under his control and subject to his orders, which they must obey, regardless of whether they concur in the necessity or propriety of them. He is the representative of the company, and is vested with all of its authority over the train and its crew in the work being done, and charged with all the duties and responsibilities which the company owes to its employés, engaged in this perhaps the most hazardous of all industrial pursuits, chief of which is the duty to carefully and skillfully superintend the movements of its cars and trains for the prevention of accidents, upon the proper discharge of which the safety of the employés is so greatly dependent. He is a vice principal of the company, and it is liable for his negligence when acting in his official capacity. Railroad Co. v. Spence, 93 Tenn. 181, 182, 23 S.W. 211, 42 Am. St. Rep. 907; Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, 28 L.Ed. 787.

This is conceded by the plaintiff in error to be the general rule, but it insists that a vice principal may act in a dual capacity; that is, he may lay aside his official or representative character, and engage in the common service with the employés who are under him and subject to his orders, and when he does so he is a fellow servant only, and any negligence of which he may be guilty while so acting is personal, and that of a fellow servant, for which the employer is not liable, and that in this case the order or signal to the engineer to move his engine backward, being one which could have been given by a brakeman, was of this character. The cases of Allen v. Goodwin, 92 Tenn. 386, 21 S.W. 760; Railroad v. Bolton, 99 Tenn. 274, 41 S.W. 442; and Gann v. Railroad Co., 101 Tenn. 380, 47 S.W. 493, 70 Am. St. Rep. 687,

are cited to sustain this contention.

The rule in this state, as held in these cases, unquestionably is that a vice principal may at times lay aside his official character and engage in the common service of the other servants of the employer over which he has control, and that his acts and negligence, while thus engaged, are those of a fellow servant, for which the employer is not ordinarily responsible; but he cannot act in both capacities at the same time and, in order to exonerate the employer, the service or act in performance of which he is engaged must be strictly that of a fellow servant, and not one which it is his duty to do, or which he may do, as a superior or vice principal. The cases in which the doctrine has been applied by this court are...