East Tenn. & W.N.C.R. Co. v. Lindamood

• Decision Date: 14 November 1903
• Parties: EAST TENNESSEE & W. N. C. R. CO. v. LINDAMOOD.
• Court: Tennessee Supreme Court

78 S.W. 99

111 Tenn. 457

EAST TENNESSEE & W. N. C. R. CO. v. LINDAMOOD.

Supreme Court of Tennessee.

November 14, 1903

Appeal from Circuit Court, Washington County; C.J. St. John, Special Judge.

Action by Walter C. Lindamood against the East Tennessee & Western North Carolina Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Tipton & Miller and Kirkpatrick, Williams & Bowman, for appellant.

Robert Burrow and Isaac Harr, for appellee.

BEARD C.J.

This is the second time this case has been before this court. At the September term, 1902, it was reversed because of the admission of incompetent testimony. The opinion of the court on that reversal will be found in 109 Tenn. 407, 74 S.W. 112. Upon its remand, another trial was had, resulting in a verdict and judgment for $5,000 against the railroad company and it has appealed, and assigned errors upon the action of the trial judge.

The defendant in error was a brakeman in the service of plaintiff in error, and while discharging his duty as such he received the injury, to recover damage for which this suit was brought. The declaration contains two counts. In the first of these it is alleged that while engaged in this service he was thrown from the top of a freight or box car in motion, and thereby received the injury complained of, and that his fall was caused by the negligence of his employer in having in use upon this car a brake which was out of repair and dangerous in that the brake chain was too long, and, by reason of this defect, when attempting to apply the brake he fell from the car, and was run over by it.

The second count averred that the fall and injury as alleged in the first count were attributable to the negligence of the master in using a freight car with a brake which was defective, in that the deadwood in the car projected against or so close to the brake rod and the eyebolt of the brake rod as to prevent it from turning freely, and, in consequence of this, when attempting to apply the brake, defendant in error fell and was injured.

It will thus be seen that the plaintiff below presented by his declaration two theories upon which he sought to recover First, that the brake chain was too long; and, second, that the eyebolt of the brake rod rubbed against the deadwood, and that one or both of these conditions occasioned his injury, and that the negligence of the master in permitting the existence of one or both of these defective conditions was actionable, so far as he was concerned. The record shows that the plaintiff in error was operating a narrow-gauge railroad upon a line some 32 miles long, running from Johnson City, in this state, to its terminus, near the boundary of North Carolina, and owned and was using on this line 10 or 12 freight or box cars. It also shows that the defendant in error had been for several years engaged in the shops of the company, repairing and building such cars. About six months, however, before the occurrence of the accident, he was employed by this company as brakeman; and, as has been already stated, it was while acting in this capacity he received his injury.

His account of the accident is that, under the direction of his superior, he mounted a freight car, which had been kicked on a side track, for the purpose of stopping it; and, to do this, he took hold of the wheel at the top of the brake staff, and was pulling it around with all his force, when the brake gave "a sudden jerk or lurch," loosening his hold on the wheel, so that, losing his balance, he fell from the car, which was still in motion, and was run over by it. He does not undertake to say what was the cause of this jerk or lurch, as he did not examine the car or brake staff either before, at the time of, or after the accident, nor did any one else make such examination. So far as his testimony, or that of the other witnesses introduced by him, was concerned, the court and jury were left in the dark as to what occasioned it. No witness undertook to state affirmatively that the accident resulted from either of the conditions charged as negligence in the declaration, or, in fact, from any other defect in the brake or its connections. The record is silent upon this very essential question, unless information is to be found in certain testimony, the competency of which will be hereafter considered.

Before coming to the examination of the assignment of error that calls in question the admission of this testimony, there are certain well-established principles controlling such a case as the present, which it is proper to state:

In the first place, it is well settled that the evidence of the plaintiff must conform to the specific acts of negligence alleged in the declaration. E. T. Coal Co. v. Daniel, 100 Tenn. 72, 42 S.W. 1062. In the second place, as between the employer and employé, there is no presumption of negligence on the part of the former in furnishing appliances to the latter, arising from the injury itself. Mr. Wood, in his work on the Law of Master and Servant, § 368, says: "From the mere fact that an injury results to a servant from a latent defect in machinery or appliances of the business, no presumption of negligence on the master's part is raised. There must be evidence of neglect connecting him with the injury. *** The mere fact that the machinery proves defective, and that the injury results therefrom, does not fix the master's liability. Prima facie, it is presumed that the master has discharged his duty to the servant, and that he was not at fault. Therefore the servant must overcome this presumption by proof of fault on the master's part, either by showing that he knew or ought to have known of the defects complained of. *** The burden of proving negligence on the part of the master is upon the servant; and he is bound to show that the injury arose from defects known to the master, or which he would have known by the exercise of ordinary care, or that he has failed to observe precautions essential to the protection of the servant which ordinary prudence would have suggested."

Again, at section 382, the same author says: "The servant seeking recovery for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part. And he is met by two presumptions, both of which he must overcome in order to entitle him to recovery: First, that the master has discharged his duty to him, by providing suitable instrumentalities for his business, and in keeping them in condition; and this involves proof of something more than the mere fact that the injury resulted from a defect in the machinery. It imposes upon him the burden of showing that the master had notice of the defect, or, in the exercise of that ordinary care which he is bound to observe, he would have known it. When this is established he is met by another presumption, the force of which must be overcome by him, and that is that he assumed all the usual and ordinary hazards."

This rule rests in part on the ground that one charging negligence as the gravamen of his action must prove it (The Nitroglycerin Case, 15 Wall. 524, 21 L.Ed. 206), and in part upon the presumption of law, which, in absence of all evidence to the contrary, is in favor of the performance of duty (Polk v. Kirtland, 56 Tenn. 292). In one form or another it has been applied by this court in R. R. v. Gurley, 80 Tenn. 46, and R. Co. v. Duffield, 80 Tenn. 63, 47 Am. Rep. 319, and R. R. v. Stewart, 81 Tenn. 432, and in other cases:

Mere conjectural testimony will not be sufficient to meet and overcome these presumptions. In Sack v. Dolese, 137 Ill. 129, 27 N.E. 62, the rule was applied to facts somewhat similar to those of the present case. In that, an employé attempted to stop a loaded car by the use of the brake, when it gave way, and he was thrown to the ground, sustaining severe injuries. As to the accident his testimony was as follows: "The car was still in the act of running slowly. I was holding with all my strength the brake to stop the car. Then I got a sort of push from the brake. It swung me about, and I fell down, and the car ran over me. That is all. The brake threw me down, around. I was taking hold of it with my might, and with all my strength. That is why it threw me. Something loosened on the chain below. The wheel in my hand turned. The chain gave way that is on the handle below on the brake."

The above is the sum of the testimony upon which a recovery was sought. There was no evidence as to what, if any, defect was in the brake chain; and there was none that the plaintiff was injured by reason of lack of skill in performing the work. His injury, said the court, "was clearly due to the breaking--and from no fault of his--of the appliance which he was handling. Therefore the only count of his declaration which the evidence would fit is the one charging the failure on the part of the appellees to furnish, in and about the work which the appellant was directed to do, proper cars, and suitable appliances and brakes for stopping and operating the same, and keep them in proper repair; and, by reason of the carelessness and negligence of appellees in that regard, plaintiff was injured."

The trial judge, at the close of the plaintiff's evidence had instructed the jury to find the defendants not guilty, and it was insisted in the Supreme Court that this was error. That court, in disposing of this contention, said: "There was no evidence introduced or offered by plaintiff to show that the brake of this car was improperly constructed, or in what the defect in it consisted. The plaintiff's right to recover depends upon the proof of injurious negligence by defendant. He alleged such negligence in his declaration, and the burden was on...