Kirk v. Atlanta & Charlotte Air-Line Ry. Co.

• Citation: 55 Am.Rep. 621,94 N.C. 625
• Court: North Carolina Supreme Court
• Decision Date: 28 February 1886
• Parties: LEWIS J. KIRK v. THE ATLANTA AND CHARLOTTE AIR-LINE RAILWAY COMPANY.

94 N.C. 625

55 Am.Rep. 621

LEWIS J. KIRK

v.THE ATLANTA AND CHARLOTTE AIR-LINE RAILWAY COMPANY.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION, tried before McKoy, Judge, and a jury, at August Term, 1884, of the Superior Court of MECKLENBURG county.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

The facts appear in the opinion.

Mr. W. P. Bynum, for the plaintiff .

Messrs. R. D. Johnstou, D. Schenck and F. H. Busbea, ( Messrs. H. C. Jones and C. M. Busbee, were with them on the brief), for the defendant .

SMITH, C. J.

The complaint imputes negligence to the defendant company, in the management of a shifting engine, in charge of an engineer, whereby it came in contact with a stationary car, and the impulse of which put others in motion, under which the plaintiff, then engaged in inspecting, by direction of the foreman of the round-house, was run over, and his arm crushed, so as to require amputation; and for this injury, demands compensatory damage. The answer denies the imputation of negligence, and avers contributory negligence on the part of the plaintiff, in producing the result. It also sets up the further defence, that if there was a want of due care in moving the engine, it was the act of a fellow-servant, in the same general employment, for the consequences of which, the company, the common principal of both, is not responsible.

The issues prepared and submitted to the jury were:

“(1). Whether the plaintiff's injury was caused by the defendant's negligence?

(2). Was the plaintiff's negligence contributary thereto; what damages is he entitled to?”

The Court refused an issue tendered for the defendant: “was the injury caused by the negligence of a servant of the company--if so, what one?” and the defendant excepted thereto.

The testimony offered, tended to show the following facts:

The plaintiff's general employment was that of a carpenter, and he had been often sent out, as he was on the occasion when he was hurt, to inspect cars, and report upon their condition and fitness for immediate use. To this service he made no exception that it was not within the scope of his employment. The yard-master, B. T. Thompson, at the junction, had the general management, making up, switching, receiving and delivering trains. He had ordered Harris, the engineer in charge of the switch engine, to stop at the eating house, seven car lengths from the cars under inspection. It was the custom for the switch engine to remain, and not move until the inspection was finished, and the engineer informed of the fact. One Todd was the regular inspector, acting at the time, the plaintiff assisting in place of one Clark, who was sick. It was the duty of Todd to notify the yard-master when the examination was over, and then for him to communicate the fact to the engineer, that he might proceed. One John Smith, a colored man, was an assistant of the yard-master, and when directed, would convey messages, and give signals to the engineer, when the yard-master was present, that the way was clear, and he could proceed. On this occasion, Smith gave the unauthorized and premature order, as it is termed, to the engineer Harris, who thereupon put his engine in motion, and caused the car under which the plaintiff was inspecting, to crush his arm, no notice having been given him of what was about to be done, and he not seeing or hearing of the approach of the engine, until the impact took place.

The blame then rests upon Smith, primarily for giving the order, and it is perhaps shared by Harris, in heeding and acting upon it, as coming from that source, and A. P. Brown the fireman.

It was admitted by the counsel for plaintiff, that Harris the engineer, Brown the fireman, Thompson the yard-master, and Smith, his assistant, were fellow servants of the plaintiff, and the Court directed the jury, that “if the injury resulted to the plaintiff, without fault on his own part, from the negligence of an employé or fellow servant, occupying the same level with the plaintiff Kirk, when the Air-Line Company used due care in the selection of such fellow servants, then the jury could not say from this, that the injury resulted from the carelessness or negligence of the Air-Line Company.”

Then after defining a fellow-servant, as “one upon an equality with the injured person, under the same or common control, engaged in a common employment, or in the same line of employment,” the charge proceeds to subjoin a qualification of the general rule of non-liability of the common master, in these words: “But if one of the employees has the right to give orders, and the other, by his employment is bound to obey the orders, then the person who has the right to give an order, which the other ought to obey, under the contract of employment which he has taken upon himself, these are not fellow-servants, but the man who has the right to give the orders, is a middle man, and whether vice-principal or not, if Kirk was injured by the carelessness or negligence of one occupying this position, which gave him the right to order, and which order Kirk, by the nature of his employment, ought to obey (if he has shown his right to recover in other particulars), and he is without fault on his own part, he is entitled to your verdict for such damages as you think he has shown, and to which he is entitled.”

The first observation suggested by the charge, is the omission of the Court to tell the jury, between which of the parties, and the plaintiff servant, the relations of middle-man and subordinate, which exempt the defendant from the protection of the general rule, and subject it to direct accountability for the injury sustained. Between the plaintiff, and those to whose immediate precedent action the injury is attributed, the relations are conceded to be those of fellow-servants, and in one view properly so conceded, and the charge, if it has any support in the evidence, must have reference to the yard-master, under whose general superintendence all the movements and operations at the station are placed. But it was not from any inattention or act of his, that the mischief proceeded. He gave no false information, nor did he issue any inprovident order on thc?? occasion, so far as the testimony reveals his conduct, but the culpability abides upon Smith or Harris, or upon both, and these are co-employees, for whose conduct in the discharge of duty, their common superior is not answerable.

But is the charge correct, in stating the proposition of law, and is it appropriate to any aspect of the testimony? Is it true that when among fellow-workmen, one has authority to direct and control the work of others, as in all cases a general superintendence must be vested in some one, in order that the efforts of each may be in harmony, and tend to one practical result, where many are employed, this person becomes a ...