Illinois Cent. R. Co. v. Spence

• Decision Date: 21 September 1893
• Citation: 23 S.W. 211
• Parties: ILLINOIS CENT. R. CO. v. SPENCE.
• Court: Tennessee Supreme Court

Page 211

23 S.W. 211

ILLINOIS CENT. R. CO. v. SPENCE.

Supreme Court of Tennessee.

September 21, 1893.

Error to circuit court, Madison county; Levi S. Woods, Judge.

Action by Ella Spence against the Illinois Central Railroad Company for damages for killing her husband. Judgment for plaintiff, and defendant brings error. Reversed.

McCorry & Bond and M. Brown Gilmorme, for plaintiff in error. Haynes & Hays, for defendant in error.

McALLISTER, J.

The plaintiff below, Mrs. Ella Spence, brought this suit to recover damages for the killing of her husband, which she alleges was occasioned by the negligence of the railroad company. The plaintiff's intestate, W. G. Spence, at the time of the accident was a fireman on a freight train going north from Jackson, which collided with a south-bound passenger train a few miles above Oakfield, and in the collision Spence sustained personal injuries from which he died in about one hour. The passenger train was coming south, and was designated on the time table as "No. 3." The freight train was going north, and was designated as "No. 22." The passenger train was on time, and, according to the schedule, was due at Medina, a station seven miles north of Oakfield, at 2:02, and at Oakfield, a station eight miles north of Jackson, at 2:18, and at Jackson at 2:35. The freight train received orders at Jackson at 1:38, the engineer and conductor both receipting to the train dispatcher. These orders referred to other trains. They were told that the passenger train was on time. The engineer and conductor both had time cards showing the time of the passenger train, and when due at stations. The time cards required that this freight train should reach Oakfield and take the siding five minutes in advance of the arrival of the passenger train. The freight train was, however, not stopped at Oakfield as it approached this station. The engineer sounded the whistle, the brakes were applied, and one of the witnesses,—a brakeman on this train,—named Poe, testified that the engineer gave him a signal to let the brakes off, which was done, and the train, passing Oakfield, went forward to the place of the accident. It appears that the crew in charge of the passenger train were in no default, but the collision was brought about by the negligence of those in charge of the freight in wrongfully passing Oakfield. The gravamen of the plaintiff's action is that her intestate husband was in the employment of the defendant company in the capacity of fireman on the locomotive engine of the freight train; that said train was in charge of one Barnett as conductor, who was superior in rank and grade, and whose orders the plaintiff's intestate was bound to obey; that said conductor represented the company in the management of said train, and was in command of the crew, with authority to order and direct their movements. Plaintiff claims it was the duty of the conductor and engineer, under the rules of the company, to have taken the siding at Oakfield, and to have held the said freight train there until the arrival and passage of No. 3, which they knew was approaching from Medina; and that by passing Oakfield a collision was inevitable, as there was no intermediate station or side track. Plaintiff claims that she is entitled to a recovery whether the collision occurred by reason of the negligence of the conductor or by the combined negligence of the engineer and conductor, as the latter represented the company, and plaintiff's intestate assumed no risk of any negligence on the part of the company or its immediate representatives. It is further insisted that plaintiff's intestate was not guilty of contributory negligence in not observing the approach of the passenger train, since his duty was that of obedience, and he had a right to presume that the engineer and conductor had orders from the train dispatcher to pass Oakfield, and to meet the passenger train at some other station. There was a verdict and judgment in favor of the plaintiff for $12,000. The railroad company appealed, and has assigned errors.

The first assignment of error is based upon the following instructions of the court given in charge to the jury, viz.: "Where the direct or immediate cause of the accident is caused alone by the fault or negligence of the conductor in charge of the train, or where the fault or negligence of the conductor and engineer equally bring about a collision and cause the death of the fireman, he not being at fault, and," etc., "a recovery can be had." And again: "If it was the duty of Spence, the fireman, to put coal in the engine, and also to look ahead for any obstructions on the track, and to look out for signals by the conductor through the brakeman, and he did not have the control or management of the train, and no right to say whether it should stop or not, then he would stand in relation of a subordinate to the conductor." And again: "If the proof shows that he was fireman, * * * and the conductor and engineer were both furnished with the rules and regulations of the company and a time card, and * * * you find that the company held the conductor and engineer equally bound for the safety of the train, and the observance of the rule not to run on the time of the passenger train, and further find that the engineer carried the train on by, and failed to stop at, Oakfield, and that the conductor failed or neglected to signal the engineer or try to stop the train, and you further find that the train went on and made no stop, and had the collision, and plaintiff's husband was killed in the performance of his duty as fireman, without fault or negligence on his part, then plaintiff could recover." Again: "If the rule or regulation of the company was equally binding on the engineer and conductor to stop and side track, and they failed to do it, and the conductor took no steps to have the engineer stop at Oakfield, and you find that the failure to stop at Oakfield was the immediate and direct or proximate cause of the injury, and brought about by the fault or negligence of the conductor, then plaintiff could recover."

The specific exceptions to the instructions of the court recited above are that Barnett, the conductor, Hillsman, the engineer, and Spence, the deceased fireman, were fellow servants engaged in the common employment of operating the train and getting it over the track, and that the company is not liable for personal injuries sustained by Spence by reason of the negligence of either the conductor or engineer, or as the result of their combined negligence. The general rule is well settled that when the particular duties to be discharged require the services of several persons, as in the movement of railway trains, the safety of the employe depends not only upon his own individual skill and prudence, but likewise upon the caution and competency of other persons associated with him in the business; and the employe assumes the risk of danger, not only from his own negligence, but likewise from the negligence of his fellow servant. But this general rule exempting the employer from liability to one servant for injury sustained in consequence of the negligence of his fellow servant does not apply when it appears from the facts in the case that an employe in a subordinate position has been injured by the negligence or improper conduct of another servant placed by the master in a superior position over the former; and when such inferior servant is made subject to the order of such superior, and when the injury occurs during the performance of their duty, a servant who is in a position of authority over the subordinate servant is not in the sense of the law of fellow servant in a common employment, but represents the master, who is liable for his negligence. The reason for this rule stated by Judge McFarland in Railroad Co. v. Wheless, 10 Lea, 746, is based not upon the idea of the relative rank of the two servants, or the general superiority of the one in position, intelligence, or skill, or in the wages received, but upon the ground that the one is placed under the orders and direction of the other, and required to submit to and obey such orders in the performance of his duties; that the inferior is placed in the position of a servant to the superior. In such cases the superior is held to represent the master. In the case of Railroad Co. v. Lahr, 86 Tenn. 340, 6 S. W. Rep. 663, Judge Lurton said, viz.: "Where the inferior is injured while executing a lawful command of his superior, or where the superior represents and stands for the master, and has a right to control the movements of the train and of all the employes, in all such cases the rule of respondeat superior applies with reference to any injury resulting from the official negligence of such superior. Railroad Co. v. Bowler, 9 Heisk. 866; Railroad Co. v. Collins, 85 Tenn. 227, 1 S. W. Rep. 883." Says Judge Cooper in Railroad Co. v. Handman, 13 Lea, 423: "In order...