Dayton Coal & Iron Co. v. Dodd

• Decision Date: 06 June 1911
• Docket Number: 2,066.
• Citation: 188 F. 597
• Parties: DAYTON COAL & IRON CO., Limited, v. DODD.
• Court: U.S. Court of Appeals — Sixth Circuit

188 F. 597

DAYTON COAL & IRON CO., Limited, v. DODD.

No. 2,066.

United States Court of Appeals, Sixth Circuit.

June 6, 1911

[Copyrighted Material Omitted]

W. B Miller and Paxton, Warrington & Seasongood, for plaintiff in error.

Fostor V. Brown, Frank Spurlock, and Joe Brown, for defendant in error.

Before SEVERENS and KNAPPEN, Circuit Judges, and SATER, District judge.

KNAPPEN Circuit Judge.

The writ of error is brought in this case to review a judgment in favor of defendant in error for personal injuries to plaintiff's intestate, resulting in death. The prominent facts are these:

The plaintiff in error (hereinafter called the defendant) was at the time of the accident engaged in operating a furnace at Dayton, Tenn., for the manufacture of pig iron, purchasing the ore used for that purpose, also maintaining coal mines and coke ovens about three miles from Dayton, together with a small railroad system, consisting of a line from the Dayton yards to the coal mines, and another, about two miles long from the Dayton yards to the river, and connecting with traffic thereon. There was also connection at Dayton with the tracks of the Cincinnati Southern Railway. The operating of the furnaces (which was the principal business), the railroad, the mines, and coke ovens (coke being required in the manufacture of pig iron), constituted one business, over which there was a general superintendent; there being also a yardmaster, or foreman of the railroad department. The train running between Dayton and the mines was manned by a locomotive engineer, a fireman, a head brakeman, and an assistant brakeman; there being no conductor. The business of this railroad was largely the hauling of coal and coke from the mines to Dayton, and the hauling of empty coal and coke cars, as well as supplies of various kinds, from Dayton to the mines and ovens. Day and night train shifts were maintained. The first train which left Dayton at 6 o'clock in the morning, and was the first run of the day shift, was called the ' miners' train. ' It consisted largely of empty coal and coke cars to be filled at the mines and ovens, and in which coal and coke cars the miners rode to the mines; supplies being sometimes carried in the train. The company had houses at Dayton, Morgantown, and elsewhere along the railroad, which it rented to its employes. Some of the latter, including deceased, did not rent company houses. The greater part of the miners lived at Dayton and at Morgantown; the latter being a mile or less from the mines. The miners were allowed to ride on this train free, and most of them did so ride; the wages being the same whether they rode or not. They were not, however, required to ride.

The whistle was blown at Dayton as a notice to the miners that the train was about to start. Those living at Morgantown took the train at a certain customary meeting point. At about 4:30 in the afternoon, after the last blast, the miners took the train at Hanging Rock for the return home; that run being the last made by the day shift, and this return train consisting largely, but not always exclusively, of empty coal and coke cars. The miners had nothing to do with either the operation of the morning or the evening train; their actual work having ended when the last blast was fired. The railroad was entirely a private road, and did no commercial business whatever. It carried no passengers, unless the miners are to be regarded such. No passenger cars were carried. From a point at or near Hanging Rock on the main track (where the miners left the train), a spur or tail track, about 300 feet in length, extended to the coal tipple. This tail track had been extended several months before the accident, and in connection therewith a derailing switch put in, in order to throw off the track any runaway car which might escape from the vicinity of the tipple, and thus prevent the car running upon the main track. Until a few weeks before the accident in question it had been customary to operate the derailing switch in connection with trains passing over it. A few weeks before the accident, however, a new head brakeman was installed. He was not instructed to use the derailing switch, and did not make a practice of doing so during his employment, which covered the time of the accident to the deceased. On the evening in question the train brought in from Dayton two cars (one fully, the other partly, loaded) which it left at the coal tipple, in connection with a third car standing thereat. On leaving these cars the train passed over the tail track and onto the main track; the derailing switch not having been set after the passage of the train. The miners (between 200 and 400) boarded the train at Hanging Rock. A few minutes after the train left, the stable boss at the mines, who was also engaged that day in loading coal cars, in company with another employe, pinched two of the cars at the tipple apart from the third, in order to make room for the passage of the mules between the mines and the stables, with the result that the two cars referred to became unmanageable and ran away down the incline of the tail track and upon the main track, overtaking and colliding with the miners' train, killing the plaintiff's intestate and several others. Had the derailing switch been set, the accident could not have happened. The plaintiff relied upon several grounds of negligence, not necessary to be here stated in addition to those submitted to the jury. Upon the trial the defendant contended that the relation between defendant and deceased was that of master and servant. The plaintiff contended that the defendant's relation was that of a carrier of passengers. The trial court held that the defendant was, as concerned the deceased, not a common carrier of passengers, but a private carrier, bound only to 'exercise such a degree of care and skill in the management and running of its train as a prudent, cautious man, experienced in the business would be expected to use under the circumstances; that is to say, in reference to the means of transportation employed and the character of the train being operated. ' The court submitted to the jury three alleged grounds of negligence: First, the failure of the defendant's superior officers or agents to 'instruct the brakeman in reference to the use or operation of the derailing switch; that is, the alleged failure to see that the use of that derailing switch was kept up by the train crew. ' Second, the alleged negligence of the head brakeman in failing to set the derailing switch. And, third, the alleged negligence of the employes in so handling the cars at the tipple as to permit them to run away and collide with the miners' train. At the close of the testimony the defendant moved for peremptory instruction, which was denied.

1. A preliminary question arises over the authority of the administrator appointed by the county court of Rhea county, Tenn. Section 6023 of Shannon's Code of Tennessee provides that:

'The county court to be held by the county judge, shall have its regular sessions on the first Monday of each month.'

The order appointing the administrator was made on July 2, 1907. The caption of the order of appointment is as follows:

'Be it remembered that a quorum court was opened and held for Rhea county, at the courthouse in the city of Dayton, Tennessee, on the 2d day of July, 1907, * * * when the following business was had and entered of record.'

It seems to be conceded that the 2d of July, 1907, was Tuesday, and it is urged that the order thus shows upon its face a lack of jurisdiction. The section of the Code above quoted contains, however, this provision:

'And the court shall sit from day to day so long as the business thereof may require.'

The county court being one of general jurisdiction over the appointment of administrators, all possible intendments will be made in support of the order of appointment, and only jurisdictional defects appearing on the face of the record can be attacked collaterally. Brien v. Hart, 6 Humph.(Tenn.) 131; State v. Anderson, 16 Lea (Tenn.) 321; Curtis v. Charlevoix County Supervisors, 154 Mich. 646, 656, 118 N.W. 618.

To exclude an intendment that the regular session was opened on Monday, July 1st, and continued on Tuesday, July 2d, as the statute permits, it is necessary to construe the language 'a quorum court was opened and held ' as if it read 'a regular session of the quorum court was begun and opened'; for only thus would the lack of jurisdiction appear upon the face of the record. It is clear, to our minds, that the language of the order should not be so construed, and that lack of jurisdiction does not appear upon the face of the order.

2. The fundamental question presented is whether the relation of the deceased to the defendant, while on the train in question was that of a passenger or servant. This question gains special importance from the fact that two of the grounds of liability submitted to the jury relate to negligence of employes of defendant who, it is insisted, were fellow servants of the deceased; it being the settled rule in the federal courts that an employer is not liable for an injury to an employe occasioned by the negligence of another employe engaged in the same general undertaking, and that it is not necessary to the application of this rule that the employes should be engaged in the same operation or particular work; it being sufficient if the two are in the employment of the same master and engaged in the same common enterprise, both performing duties tending to accomplish the same general purpose, although they may be in different departments. Steamship Co. v. Merchant, 133 U.S. 375, 10 Sup.Ct. 397, 33 L.Ed. 656; Railroad Co. v. Hambly, 154 U.S. 349, 14...