East Tennessee Coal Co. v. Daniel

• Citation: 42 S.W. 1062,100 Tenn. 65
• Parties: EAST TENNESSEE COAL CO. v. DANIEL.
• Decision Date: 10 November 1897
• Court: Supreme Court of Tennessee

42 S.W. 1062

100 Tenn. 65

EAST TENNESSEE COAL CO. v. DANIEL.

Supreme Court of Tennessee.

November 10, 1897

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by Evan Daniel against the East Tennessee Coal Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.

Ingersoll & Peyton, for appellant.

Lucky Sanford & Tyson and Jourolman, Welcker & Hudson, for appellee.

McALISTER J.

Daniel recovered a verdict and judgment in the circuit court of Knox county against the East Tennessee Coal Company for the sum of $2,000 damages for personal injuries. The company appealed and has assigned errors. This cause was before the court at last term on appeal of the coal company from a judgment against it in favor of defendant in error for $2,200. The judgment of the lower court was reversed for error in the charge of the trial judge, and for the further reason that in the opinion of this court there was no evidence to support the verdict.

The plaintiff below, Evan Daniel, was employed as a blacksmith helper at the company's mines, and sustained serious personal injuries while riding in an empty car ascending the inclined tramway used by defendant company for the purpose of transferring its coal from its mines down to the valley below. The original declaration alleged that defendant company used this incline in its coal-mining operations; that the tram cars, though dangerous, were habitually used by the employés; that plaintiff, a blacksmith helper at defendant's shops at the top of the incline, was directed by defendant's foreman of the blacksmith shop to go down and return on a trip of said tram cars, for the purpose of getting some nails; that on the return trip the fastenings or couplings by which the first of the ascending cars was hitched to the wire cable operating the tramway broke loose and caused the accident in which plaintiff was injured; that the coupling was out of order and negligently coupled; and that the accident was caused by the negligence of the defendant company in this respect. The trial judge instructed the jury that there could be no recovery on this declaration since no evidence had been introduced tending to show that the injury had occurred in consequence of the breaking loose of the cable. The amended declaration, after reciting the employment of plaintiff as assistant blacksmith, stated that he had been sent by the foreman of the shop down on said loaded cars to get a package of nails, and that while returning on the empty cars the same became derailed, and plaintiff was injured, by reason of the cars, coupling, track, and latches on said incline being defective and dangerously constructed, and that at the time of the accident they were seriously out of order and dangerously obstructed, all on account of the negligence and carelessness of defendant company. The defendant pleaded the general issue, and relied also upon the statute of limitations of one year.

The facts disclosed in the record are that the inclined tramway had two tracks, which converged near the bottom, and that its length was about 550 feet. The cars were operated by a wire cable winding over a drum at the top of the incline; the loaded cars descending on one track, and the empty cars ascending on the other parallel track. The company had in its employ two men, named Abe Hall and Clint Roland, who were stationed at the bottom of the incline, and whose duty it was to receive and detach the loaded cars, and to forward the empty cars. It appears that about 30 feet from the point where these men were stationed there were two movable switch rails, called "latches," and the employés Hall and Roland were charged with the duty of keeping these latches clear of coal or other obstructions, in order that they would work properly and switch the cars. The cause of the accident upon the evidence presented in the record, is a matter of conjecture and speculation. The most reasonable theory, as we view the record, is that a piece of coal had fallen from one of the cars upon one of the lower latches, thereby preventing the latch from closing, and causing the second car, upon which Daniel was seated, to jump the track. The learned counsel for defendant in error has no distinct theory upon which he relies. He states in his brief, viz.: "Two witnesses say it was caused by coal left in the latches; two say it was caused by the coupling bouncing out of the link; another witness says it was a bad car, with worn wheels; another says it might have come from coal in the latches, a pin jumping out, or the cars being out of gauge; and yet another witness says that the pressure of the rope might have thrown it off." "But," says counsel, "whichever of these was the real cause, it resulted from the negligence of defendant in providing and maintaining in such an imperfect and dangerous condition such a means of conveyance, upon which it invited and allowed its employés to ride." It appears that for some time previous to this accident the company had caused to be posted in a conspicuous place, both at the top and foot of this incline, the following notice, to wit: "Riding on cars of this company strictly forbidden. Riding on cars of incline also forbidden. Every one riding on cars of this company does so at his peril." The reason of this notice is obvious. The inclined tramway was not designed for passenger accommodation, but as a means of hauling coal from the mines to the valley below. It was necessarily a very dangerous mode of transportation for passengers, and this fact was patent to all the employés of the company. The cars, it is shown, frequently left the track, and accidents were unavoidable. It was necessary to keep in constant use an appliance to throw all the cars from the track when one car became derailed, in order to prevent the loosened car from being precipitated down the incline, imperiling life and property below. It appears that Daniel had been working for several years near the top of the incline, and was cognizant of the danger, since it was a part of his duty to remove wrecks and repair injured cars. It is insisted, however, that the rule of the company against riding on the cars was habitually violated by officers and employés, with the knowledge of the company, and that the rule was practically abrogated. It is stated by plaintiff that, when he went to the mines to work, the superintendent took him into one of these cars, and carried him up to the bank level at the shop, and that he had repeatedly ridden thereafter with the superintendent in those cars. It is further stated that officers and employés rode upon these cars every day, going to and returning from the mines. It was held by this court in Railroad Co. v. Reagan, 96 Tenn. 128, 33 S.W. 1050, that "it is the duty of a railroad company, not only to promulgate a code of rules for the government of its employés, but to enforce their observance," and that "an habitual breach and disregard of the rules by the employés, with the knowledge of the company, amounts to a practical abrogation of the rules." It is proper to say that evidence was introduced on behalf of the company tending to show that the company had not acquiesced in the violation of the rule, but had made vigorous efforts to enforce it, and that it was violated by the employés despite the remonstrances and protests of the company. It was, of course, a matter within the exclusive province of the jury to determine this controverted question upon the evidence. If it be conceded that the rule was practically abrogated on account of its habitual violation by the employés with the knowledge of the officers of the company, then the case must be tried as if no such rule had ever been adopted; and the question would still be presented whether an employé riding upon cars designed...