Fletcher v. Louisville & N. R. Co.

• Citation: 49 S.W. 739
• Court: Supreme Court of Tennessee
• Decision Date: 14 January 1899
• Parties: FLETCHER v. LOUISVILLE & N. R. CO.

49 S.W. 739

FLETCHER v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

January 14, 1899.

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Action by W. H. Fletcher against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Steger, Washington & Jackson, for appellant. Smith & Maddin, for appellee.

WILKES, J.

This is an action for damages for personal injuries. There was a trial before a jury in the court below, and a verdict and judgment for the defendant, and plaintiff has appealed and assigned errors.

The plaintiff was a machine helper in the defendant's employ, and was injured while removing the head from a cylinder on the left side of engine No. 249, in the roundhouse of the defendant company. Plaintiff was ordered to do this work by Brewington, the night foreman. Evidence was introduced to show that he was told to do it in a hurry, as the engine might be ordered out at any moment. On the other hand, defendant insists that he was only told to do the work, but was not directed to be in any haste about it. There is some evidence tending to show that such work required two men to do it, but the weight is that it could be, and was often, done by one man. Plaintiff asked the question, when told to do the work, who was to help him, and the foreman replied, "Ollie Rollins;" and this question and answer appear to have been repeated. Plaintiff made no protest or objection. It appears that Rollins was a young man about 19 years old, employed as a call boy, whose duty it was to go after employés and notify them when their services were desired at the roundhouse. In removing the cylinder head a number of screws had to be loosened, and the head let down on the ground, either by permitting it to fall a distance of about two feet, or by lowering it with a plank. It is insisted that Rollins, in manipulating this plank, twisted it to one side, and caused the head, which is a heavy piece of iron or steel, to fall on plaintiff's foot and crush it. The plaintiff's theory is that he was ordered to do this work by his superior, that an inexperienced and incompetent helper was furnished him, and that there was an emergency which required the work to be hastily done, and that in consequence of Rollins' negligence he was hurt.

The assignments are wholly to the charge of the court. It is said that the court stated defendant's theory of the case, but failed and declined to state that of plaintiff. This we think is only partially correct. The court stated plaintiff's theory, and, so far as he went, stated it correctly, but declined to charge that part of the case made by plaintiff which set up the sudden emergency feature, because it was not alleged in the declaration. The declaration does not make any statement as to there being a sudden emergency which necessitated hasty work, though there is some evidence bearing on this question. As we understand plaintiff's position on this feature, it is that it was only necessary for him to allege negligence; that, if the defendant insisted that the assistant's incompetency was known to the plaintiff, that would be matter of defense, to which plaintiff might reply that the work was done under an emergency which did not give him the opportunity and right to object to the assistant, and it was not necessary in the first instance to allege that there was an emergency. We think, in the first place, that the incompetency of Rollins is not shown in this case. The work he was required to do was not that of an expert, but was simple. The taking off of the head was not a work of difficulty, and could be, and often was, done by a single person, and the evidence is that it was done by Rollins alone soon thereafter. It may be that he was somewhat inexperienced, but inexperience alone does not make a man incompetent. If this were so, the class of experienced men being once exhausted, there could never be another, as any new man would be...