Harley v. Louisville & N.R. Co.

• Decision Date: 02 June 1893
• Citation: 57 F. 144
• Parties: HARLEY v. LOUISVILLE & N. R. CO.
• Court: United States Circuit Court, District of Tennessee

57 F. 144

HARLEY v. LOUISVILLE & N. R. CO.

United States Circuit Court, D. Tennessee.

June 2, 1893

Steger Washington & Jackson, for plaintiff.

Smith &amp Dickinson, for defendant.

LURTON Circuit Judge.

Plaintiff while in the employment of the defendant company as switchman, and while engaged in switching cars in the yard of the company at Nashville, was run over, and lost a leg. The jury have returned a verdict in his favor, and a motion for a new trial has been argued. In its present attitute the case must turn upon the single question as to whether the negligent movement of the train while plaintiff was between cars in the discharge of his duty, was due to signals given by a fellow servant. Harley, the plaintiff, belonged to a switching crew engaged in the yards of the company at Nashville. A 'switching crew,' or 'train,' as sometimes designated by witnesses, consisted of an engine, an engineer and fireman on the engine, and several switchmen all under the control of a superior servant, designated generally as the 'foreman,' though occasionally spoken of as 'conductor' of the 'switching train.' The force in the defendant's yards at Nashville seems to have been divided into several such crews, each under control of a foreman, and the whole under the general control and supervision of an officer of still higher grade, designated 'yard master.' The yard master has power to employ and discharge all yard employes, including the foremen of switching crews. The yard of the company, as the court may know from its general knowledge of the methods and appliances of railroad companies, as well as from the evidence in this case, consists of side tracks upon either side of the main tracks, and adjacent to some principal station or depot grounds, where cars are placed for deposit, and where arriving trains are separated and departing trains made up. It is the place where such switching is done as is essential to the proper placing of cars either for deposit or for departure. All the operations of the yards at Nashville are under the direction and supervision of a yard master, and his subordinates in control are the foremen of the several gangs or crews of men engaged in the movement and switching of cars within the yard. The yard master's orders were communicated to the foreman, and the foreman had control and direction of the crew under him, and through them executed the orders of his superior with regard to the switching he was directed to do.

Plaintiff was directed by his foreman to uncouple certain cars attached to others, which had been moved from a track upon which they had been standing, which cars, when uncoupled, were to be deposited upon a particular track in the yard. While endeavoring to uncouple, and while between the cars, the train was moved. He was so jostled as to lose his footing, fell, and was run over. It was clearly shown that when a switchman or brakeman was to make or unmake a coupling it was his business to signal the engineer for such movement of the train as was necessary in the discharge of his duty. There was evidence that plaintiff found difficulty in uncoupling, and came out and gave a signal to the engineer to 'give him the slack,' and that the movement which resulted in his injury was due to his own signal. On the other hand, there was evidence tending to show that, while plaintiff was between the cars, the foreman gave a signal to move backwards, and that the engineer's compliance with this signal brought about the accident. The latter is the most favorable view of the case for the plaintiff, and was the view argued by plaintiff, and the only view upon which any recovery could be predicated. If it be assumed that the verdict is based upon the theory that the foreman negligently signaled for a movement of the train before plaintiff had come out from between the cars, ought it, under the law, to stand? There was evidence sufficient to justify the jury in finding, as they must have done, that the foreman negligently ordered the movement of the train while plaintiff was in a dangerous situation. Was this foreman a fellow servant with the plaintiff, for whose negligence the company was not liable? I instructed the jury that he was not a fellow servant, if they found that he had immediate command and control of the switching crew and train, as to the employes under him, such as the engineer, foreman, and switchmen. I also instructed them that, if plaintiff was subject to the control and direction of the foreman, and that, if under such direction plaintiff undertook to uncouple cars in the train being handled under directions of the foreman, and if, while obeying this order, the foreman negligently caused the train to be moved, thereby knocking down and injuring plaintiff, the defendant company would be liable; that in such case the foreman stood as a vice principal, and represented the master, and his negligence would be the personal negligence of the master.

The test of responsibility was made to consist in the fact that the negligence was that of the immediate superior of the plaintiff, who had a right to direct and control the plaintiff in the matter and upon the occasion when the injury was sustained. This is the common law, as explained and expounded by the supreme court of Tennessee, the state wherein the injury was sustained and in which the suit was brought. Railroad Co. v. Bowler, 9 Heisk. 866; Railroad Co. v. Collins, 85 Tenn. 227, 1 S.W. 883; Railroad Co. v. Wheless, 10 Lea. 741. I was further of opinion that the principle upon which the case of Railway Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184 rested, was in harmony with the law of Tennessee. Since charging the jury, and pending this motion for a new trial, the opinion of the supreme court of the United States in the case of Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, has been received. This case was not decided until April 24, 1893. That court, after most mature consideration, held in that case: (1) That the question as to who is and who is not a fellow servant is a question...