Grant v. Louisville & N.R. Co.

• Decision Date: 20 April 1914
• Parties: GRANT et ux. v. LOUISVILLE & N. R. CO. et al.
• Court: Tennessee Supreme Court

165 S.W. 963

129 Tenn. 398

GRANT et ux. v. LOUISVILLE & N. R. CO. et al.

Supreme Court of Tennessee.

April 20, 1914

Certiorari to Court of Civil Appeals.

Action by W. Y. C. Grant and wife against the Louisville & Nashville Railroad Company and others. A judgment in favor of the Railroad Company and against the defendant W. J. Thompson for an insufficient amount, was affirmed as to Thompson and reversed as to the Railroad Company by the Court of Civil Appeals, and plaintiffs and the Railroad Company bring certiorari. Affirmed in part, and reversed in part.

H. P Figuers and Holding & Garner, all of Columbia, for plaintiffs.

Hughes & Hughes and E. H. & C. P. Hatcher, all of Columbia, and Thomas H. Malone, of Nashville, for defendants.

GREEN J.

This was an action for damages, brought by W. Y. C. Grant and his wife, Mrs. Susie Grant, against the Louisville & Nashville Railroad Company, the Nashville, Chattanooga & St. Louis Railway Company, and W. N. McDonald and W. J. Thompson partners doing business under the name of the Nashville Concrete Company.

McDonald was never served with process. A nonsuit was taken as to the Nashville, Chattanooga & St. Louis Railway Company, and upon the trial the court directed a verdict in favor of the Louisville & Nashville Railroad Company, and submitted the case to the jury as to W. J. Thompson, and the jury returned a verdict against Thompson for $3,500. The court suggested a remittitur of $1,500, which the plaintiffs accepted under protest.

The plaintiffs below appealed in error to the Court of Civil Appeals, and in that court assigned as error the action of the trial judge in directing a verdict in favor of the railroad company, and also his action in suggesting a remittitur of $1,500. The Court of Civil Appeals, in a majority opinion, approved the reduction of the verdict, but reversed the judgment of the court below in the matter of the directed verdict, and remanded the case for further proceedings against the railroad company.

Grant and wife have filed a petition for certiorari, in which they again challenge the propriety of the reduction of their verdict against Thompson. The railroad company has filed a petition for certiorari, in which it assigns as error the action of the Court of Civil Appeals in reversing the judgment of the circuit court embodying a directed verdict in its behalf. Both of these petitions have been granted, and the case has been fully argued in this court.

The Louisville & Nashville Railroad Company had a contract with McDonald & Thompson, whereby the latter firm was to construct an underpass beneath certain tracks of the railroad company near the city of Columbia. The railroad company seems to have owned a considerable plot of ground at this point, through which its tracks ran. The proposed underpass was 100 or more feet from the street. The property of the railroad company, however, it being vacant land, extended to the street. These contractors were engaged in this work, and in connection with the work were using a portable forge, which made much noise and emitted a good deal of smoke.

On the morning of the accident, the contractors had located this forge at a point very near the street, and a gentle horse, attached to a buggy driven by Mrs. Grant, took fright at this object as she was passing, ran away, and overturned the vehicle, inflicting upon her the injuries on account of which this suit was brought. This runaway occurred about 10 o'clock in the morning. It appears that there was no necessity for locating the forge at the particular point which it occupied on this occasion. The proof shows that it was put at this place on this morning for the first time, and the railroad company had no notice that the forge had been so located. There seems to have been no necessity for placing the forge so close to the street. It might have been more conveniently operated nearer to the work, 100 feet away.

The defense urged in behalf of the railroad company is that McDonald & Thompson were independent contractors, and that the company is not liable for damages resulting from their negligence.

There is a great controversy in the case as to whether McDonald & Thompson were in fact and in law independent contractors in the prosecution of this work. The contract between them and the railroad company is set out in the record and has been the subject of much discussion. The circuit judge was of opinion that McDonald & Thompson were independent contractors. The Court of Civil Appeals took the opposite view.

We think the circuit judge was correct. We are unable to distinguish the present case from the case of Railroad v. Cheatham, 118 Tenn. 160, 100 S.W. 902. The contract in this case and the one construed in Railroad v. Cheatham appear to be essentially the same. We have discussed this contract orally, and it is unnecessary to consider it in this opinion. Our comment would be but a repetition of what the court has previously said in Railroad v. Cheatham, supra.

It is nevertheless contended, on behalf of the plaintiffs below, that the railroad company owed a nondelegable duty to the public to see that its premises were kept free from any nuisance that would endanger persons traveling near by.

It is insisted that, inasmuch as this forge was located on the property of the railroad company, the company was liable, whether McDonald & Thompson were independent contractors or not.

We cannot agree to this contention on the facts of this case.

The bare fact that a person owns real property does not impose upon him responsibility for a nuisance erected thereon. 29 Cyc. 1203. The owner cannot be liable in respect to such a nuisance unless he has some knowledge of it, either actual or constructive. Generally, in fact, it must have been created by his authority.

The proof in this case shows that the forge was placed at this point near the street at 6 o'clock in the morning, and the accident occurred about four hours later. Neither the supervising engineer of the railroad, nor any other person connected with the company, seems to have had any knowledge of this location of the forge. The accident occurred within too short a time after the forge was placed there to justify an implication of constructive notice.

In those cases which hold the owner of property liable for damage caused by a nuisance created thereon by an independent contractor, it appears that the owner authorized the location of the nuisance at the particular place, had knowledge of its location, or the nuisance was a necessary incident of the work to be performed. Skelton v. Fenton Electric Light, etc., Co., 100 Mich. 87, 58 N.W. 609; Moore v. Townsend, 76 Minn. 64, 78 N.W. 880; Gulf, etc., R. Co. v. Chenault, 31 Tex.Civ.App. 558, 72 S.W. 868.

This court has said in a recent case:

"It may be now generally stated as a correct proposition of law that an employer is not liable for an injury resulting from the performance of work given over by him to an independent contractor, unless the work was unlawful in itself, or the injury was a necessary consequence of executing the work in the manner provided for in the contract, or subsequently prescribed by the employer, or was caused by the violation of some absolute nondelegable duty which the employer was bound at his peril to discharge, or was due to some specific act of negligence on the part of the employer himself." Davis v. Lumber Co., 126 Tenn. 584, 150 S.W. 545.

This underpass might have been built in such a manner as not to have interfered with the traveling public. The portable forge might have been located, and ordinarily would have been located, at a point near the work itself, a considerable distance from the street. Its location was not directed by the railroad company, or known to it. The nuisance was not a necessary incident of the work to be performed, but resulted from the improper execution of it. In such cases the contractor is alone liable for damages resulting from the nuisance, unless knowledge of the existence of the nuisance can be charged to the employer. Ward on Nuisance (1st Ed.) 81; Davis v. Lumber Company, supra.

So we think the circuit judge properly directed a verdict in favor of the railroad company, and the Court of Civil Appeals erroneously reversed this action.

The other question presented is on the remittitur suggested by the trial judge and accepted by the plaintiffs below under protest.

It is said in behalf of Mrs. Grant that her injuries were serious; that there was nothing to indicate that the jury were moved by passion, prejudice, or caprice in returning a verdict for $3,500; and that the court improperly suggested the remittitur of $1,500.

While the majority of the Court of Civil Appeals affirmed this action of the trial court, the learned judge who delivered the...