Hopkins v. Nashville, C. & St. L. R. R.

• Decision Date: 20 March 1896
• Parties: HOPKINS v. NASHVILLE, C. & ST. L. RY.
• Court: Tennessee Supreme Court

34 S.W. 1029

96 Tenn. 409

HOPKINS v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Tennessee.

March 20, 1896

Appeal from circuit court, Davidson county; Nicholas D. Malone Special Judge.

Suit by W. D. Hopkins, administrator, against the Nashville Chattanooga & St. Louis Railway, for the killing of his intestate, W. O. Hopkins. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

W. D Covington, John L. Nolen, and J. W. Gaines, for appellant.

E. H East, C. D. Porter, and J. D. B. De Bow, for appellee.

McALISTER J.

The only question presented for determination upon the record is whether the practice of demurring to the evidence is sanctioned by the constitution and laws of this state. The suit was brought by W. D. Hopkins, administrator, to recover damages for the unlawful killing of his son, W. O. Hopkins. The plaintiff's intestate, at the time of his death, was employed by the railroad company in the capacity of fireman upon a locomotive. The gravamen of the action, as outlined in the declaration, is that the death of plaintiff's intestate was occasioned by the negligence of the engineer in charge of the train. The more specific allegations of the declaration are: That plaintiff's intestate was employed as a fireman, and as such fireman it was his duty to remain on the engine. That his intestate was a young man, without any experience, having made but one trip on a freight train, and that he knew nothing of the duties of a brakeman. That, on the _____ day of October, 1889, while one of defendant's freight trains was returning to Nashville, upon which the intestate was serving as brakeman, it was stopped at McEwen's Station for the purpose of sidetracking a box car, and leaving it at said station. That, in accomplishing this object, it became necessary to uncouple some box cars in the rear of the car to be sidetracked, and the conductor, not notifying the engineer or plaintiff's intestate that one of the box cars had to be placed on the side track, or that any of the rear cars had been uncoupled, gave orders for the engineer to move forward his train, which the engineer understood as an order to go on to the next station, which order he obeyed, and moved his train on towards Nashville, leaving the conductor and all the brakemen at said station, and having no one on board the train excepting a cub fireman, the engineer, and plaintiff's intestate. That the train was a long one, with many box cars. The engineer, ignorant of what the conductor wanted done, and in obedience to the order, continued to move his train on towards Nashville, and pulled his train three miles from said station, before he ascertained that he did not have all his train, and that he was without a conductor and brakemen. That the engineer then took charge and control of said train, and started back to hunt for the lost cars, conductor, and brakemen. That said engineer ordered plaintiff's intestate to brake on the rear car, to keep a lookout for the lost part of his train, and give the signal of danger.

That, in order to do this, said engineer knew plaintiff's intestate had to walk upon the top of the box cars. That said engineer knew plaintiff's intestate had never ridden on top of freight trains, that he knew nothing of the duties of brakeman, that he had not been instructed in the duties of a brakeman, or told of the dangers attending such duties, or instructed in the way to give signals or the meaning thereof. And while said intestate was standing at the rear brake, on the rear car, as ordered by said engineer, exercising ordinary care and prudence, and keeping a lookout for the lost cars, and while the train was moving up said steep grade rapidly, a brakeman was seen coming after the train; and said brakeman, wishing to get aboard the train, gave a signal for the train to slow up, and said intestate repeated the signal, as best he could, without instructions, and when the engineer saw the signal, unmindful of the dangerous position occupied by said intestate, and knowing said intestate was without knowledge of the danger, negligently, carelessly, and suddenly reversed his engine, thus jerking the train with great force, whereby intestate was thrown with great violence to the ground and killed by said train passing over his body. The second count of the declaration states the cause of action in substantially the same way, averring that the engineer, without giving plaintiff's intestate any instructions in respect of the performance of his duties, ordered him to the rear brake on the rear car, to keep a lookout for the lost cars, and that the engineer, knowing the dangerous position of intestate, and his want of knowledge and experience as a brakeman, recklessly, carelessly, and with great force checked the speed of the train, thereby throwing intestate to the ground and causing his death. The third count avers that, in an emergency like that which confronted the engineer, it was required of him, by the rules of the company, that the train should not be moved back without sending out a flagman in the direction in which the train is to be backed, and that the train should then be moved back at a rate of speed not exceeding 4 miles an hour; that, in violation of this rule, the engineer did not send out any flagman, but ordered the deceased to take his position on the rear end of the rear car, well knowing the deceased had no experience, and while in this position, the train going at the rate of 15 miles per hour, he was thrown from the car and instantly killed. The fourth count is merely a repetition of the third count, excepting in one particular. It is averred, in the latter count, that the deceased undertook to give a signal to the engineer, and, not having been instructed in the use of signals, and not knowing their meaning, in obedience to said signal the engineer stopped the train suddenly, thereby throwing deceased to the ground and killing him. The defendant pleaded not guilty.

An analysis of the declaration will show that the death of plaintiff's intestate is alleged to have been caused by the negligence of the engineer. The engineer is charged to have been negligent in three particulars, viz.: First, in ordering the deceased to leave his place as fireman, and go to the rear brake of the rear car, to keep a lookout for the lost cars; second, in failing to give him warning, advice, and instructions in the use of signals; third, in violating the rules of the company in backing the train at a greater rate of speed than four miles per hour, and in failing to send out a flagman in the direction of the detached train. It has been held by this court that an engineer is a fellow servant, and not the superior, of a brakeman on his train, where, being deprived of their conductor, both pursue, independently of each other, the duties prescribed by the rules of the railroad company in such an emergency; the engineer not in fact assuming any control over the brakeman, though having the right to do so. Railroad Co. v. Martin, 87 Tenn. 398, 10 S.W. 772; Railroad Co. v. Wheless, 10 Lea, 741; Railway Co. v. Hindman, 13 Lea, 423 Railroad Co. v. Collins, 85 Tenn. 227, 1 S.W. 883; Railroad Co. v. Lahr, 86 Tenn. 335, 6 S.W. 663; Fox v. Sandford, 4 Sneed, 36. Plaintiff, however, undertakes to remove this case from the general rule by the averment that the deceased had been ordered by the engineer to leave his place as fireman, and repair to the rear brake of the rear car, and keep a lookout for the detached cars. The plaintiff, in support of this charge, introduced the engineer. But this witness testified that deceased went to the rear car and took his position voluntarily and without orders from him; that deceased was performing the duties prescribed in such cases independently of the engineer, and without any orders or instructions from him whatever. This evidence is undisputed. The witness further testified that the deceased understood the signals, and, while the train was backing, gave the engineer a signal to stop immediately; that he accordingly shut off steam, and deceased fell over and was killed. The proof introduced by plaintiff shows that the engineer in charge was a thoroughly competent, careful, and prudent man, and that, in shutting off the steam, he was simply in the performance of his duty to stop the train in obedience to a danger signal from the deceased. There is no proof whatever that the deceased did not understand the signals. The only proof on the subject is that of the engineer, who testifies that he did understand them; and it will be remembered that the engineer is the plaintiff's witness. The engineer also contradicts the charge in the declaration that no notice was

given him that a car was to be left at McEwen. He says he had such orders.

The only other ground of negligence averred is that the engineer while in charge of this backing train, did not send out a flagman, as required by the rules of the company, and also exceeded the rate of speed allowed. The plaintiff offered in evidence rule 31 from the code of rules adopted by the company for the regulation of its employés. This rule provides that, "if a train should part while in motion, trainmen must use great care to prevent the detached part from coming in collision. Engineers must give the signal as provided in signal rule 3, and keep the front of the train in motion until the detached portion may stop. The front portion will have the right to go back, regardless of all trains, to recover the detached portion, first sending out a flagman in the direction in which the train is to be backed, and running with great caution, not exceeding four miles per hour," etc. It is very obvious that this rule has no application to the facts of this case. This train did not part...