Allen v. Goodwin

• Decision Date: 11 March 1893
• Parties: ALLEN v. GOODWIN.
• Court: Tennessee Supreme Court

21 S.W. 760

92 Tenn. 385

ALLEN v. GOODWIN.

Supreme Court of Tennessee.

March 11, 1893

Appeal from circuit court, Maury county; E. D. Patterson, Judge.

Action by J. D. Allen, by next friend, against Frank Goodwin, for personal injuries sustained while in defendant's employ. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Vorheis & Fowler and Sam Holding, for appellant.

Fussell & Wilkes, for appellee.

WILKES J.

The plaintiff, a minor, by next friend, sued the defendant for damages for a physical injury received while in the defendant's employ. It is charged that the jury was the result of the negligence of one Gallagher, who, it is alleged, was foreman for defendant in the erection of certain United States arsenal buildings at Columbia, Tenn., in 1891. The case was tried before a jury, and verdict was given for $250 damages, upon which judgment was entered, and an appeal is prayed to this court by defendant. Many errors are assigned, but we deem it unnecessary to pass upon them all. The injury was inflicted under the following circumstances Plaintiff was engaged in dressing a stone pilaster on the building, and was standing upon a platform about 20 feet from the ground. Gallagher was working above him, near the cornice, trimming a hole in the stone, and fitting in the same a piece of pipe. This piece of the pipe, about two feet long and five inches in diameter, fell through the hole upon the plaintiff, striking him on the bridge of the nose cutting through it, and extending downward, causing a permanent scar and disfigurement of the face.

Under the facts in this case, we think there is no error in the court in not charging the jury properly and fully as to the distinction between the personal negligence of Gallagher and his negligence in a matter in which he stood in the place of and represented the master, as his vice principal; in other words, between personal and official negligence. The mere fact that an injury results from the negligence of a servant superior in rank to the injured servant, does not render the master liable; but, in order to charge the master with such negligence, the superior servant must so far stand in the place of the master as to be charged in the particular matter with the performance of a duty towards the inferior servant which, under the law, the master owes the servant. Fox v Sandford, 4 Sneed, 36; Railroad v. Elliott, 1 Cold. 611; Railroad v. Wheless, 10 Lea, 741; Railroad Co. v. Rush, 15 Lea, 151; Railroad Co. v. Handman, 13 Lea, 423; Railroad Co. v. Lahr, 86 Tenn. 340, 6 S.W. 663; Mining Co. v. Davis, 90 Tenn. 711, 18 S.W. 387. In Mining Co. v. Davis, 90 Tenn. 718, 18 S.W. 387, this court said: "When there is proof tending to show negligence of a superior servant, whereby an inferior servant has been injured, the...