Louisville & N. R. Co. v. Jackson

• Decision Date: 16 February 1901
• Citation: 61 S.W. 771
• Parties: LOUISVILLE & N. R. CO. v. JACKSON.
• Court: Tennessee Supreme Court

61 S.W. 771

LOUISVILLE & N. R. CO. v. JACKSON.

Supreme Court of Tennessee.

February 16, 1901.

Appeal from circuit court, Dickson county; A. H. Munford, Judge.

Action by Milton Jackson against the Louisville & Nashville Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

H. & J. Leech, H. J. Bowers, and Frank Slemmons, for appellant. Leech & Savage, for appellee.

WILKES, J.

This is an action for damages for personal injuries. There was a trial before the court and jury, and a verdict and judgment for $1,999.99, and the railroad has appealed and assigned errors.

The case, as presented by the plaintiff in his declaration, is that he was a conductor of a freight train on the road of the defendant company, and that on reaching Slayden station it became necessary to take into the train a car at that station. Not having a full crew of train hands because of the desire of the company to operate the road as economically as possible, it was necessary for him to sometimes do the work of a brakeman. On this occasion he had only two brakemen, and while he was coupling and uncoupling some cars, and when he was between them for this purpose, he stepped on a pinch bar, or round piece of iron, that had been negligently left on the track between the rails. This caused his foot to turn, and threw him between the moving cars, which ran over his foot, and crushed it so as to require its amputation. This pinch bar was used to move cars on the side track at the station when there was no engine there for the purpose. The allegation was that it was the duty of the station agent to keep the tracks clear on the station grounds, and that he failed to perform this duty, but negligently left it where it caused the accident. The contention is that this plaintiff and the station agent were not fellow servants, but were engaged in distinct and separate departments. It appeared from the proof that the conductor was required to do not only the duties appertaining to his place, but also some of those which are ordinarily done by brakemen, and this because of a scarcity of train hands. One of the rules of the company was that station agents should have charge of, and be responsible for, the company's books, papers, buildings, sidings, and grounds at their respective stations, and should be responsible for the property intrusted by the company in the transaction of its business to them, and should inspect the station buildings and grounds daily, and see that they are in proper condition for the accommodation of passengers and the reception of freight, etc. This rule, the plaintiff insists, put upon the agent at that station the duty to see that this iron bar, which was used to move cars on the tracks in the depot yard in the absence of an engine, was kept off the tracks when not in use, and the nonperformance of that duty was negligence upon his part, which, having caused the plaintiff's injury, the master (in this case the defendant company) is liable. The basic idea of the plaintiff's pleading, and which was accepted by the court, as manifested in its charge and refusals to charge, was that the plaintiff and the station agent were not "fellow servants, but were in distinct, separate, and different departments of service; had no association in their employment; plaintiff having no relation to or connection with said agent save to go to the station, and take therefrom such cars as he might order, and to do such switching or moving of cars in the yard as he might order done." The court charged the jury as follows: "The rule that an employé cannot recover for injuries caused by the negligence of a fellow servant applies where the parties are engaged in one common work in the same department of employment; but where the employment is for separate and distinct purposes, although employed by the same person or railroad company, they would not, in the contemplation of law, be fellow-servants. As an illustration: If one person is employed to operate and run a train of cars, and the other to look after the company's property at a station, keep the yards and tracks clear of obstructions, and receive and forward freight, these positions would not be the same of character and class of responsibilities as would render them fellow servants to that extent that the one assumes the ordinary risk of the negligence of the other," — and declined to charge several requests, which, in different form, presented the theory that the plaintiff and station agent should be treated as fellow servants, so that the master would not be liable to either for the negligence of the other; and this presents the only real matter of controversy in this case. We are cited to quite a number of cases from the United States, which can be of little service to us in this case, as the decisions of these courts are not in accord with our own upon the general doctrine of fellow servants and employés in different departments. Such are the cases of Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 944; Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003; Toner v. Railway Co., 69 Wis. 188, 31 N. W. 104, 33 N. W. 433; Hodgkins v. Railroad Co., 119 Mass. 419. We are also cited to the case of Railroad Co. v. Gurley, 12 Lea, 46. It was this: Gurley was an engineer on the road, pulling a train from Knoxville to Chattanooga, and in his run had to pass Cleveland. The rules of the company required the yard master at Cleveland to inspect the switches 10 minutes before the arrival of each train. On this occasion the yard master had not inspected the switches for two hours before the arrival of Gurley's train, and one of them — a split switch — had gotten disarranged, so that when Gurley's train...