Louisville & N.R. Co. v. Dillard

• Decision Date: 18 March 1905
• Parties: LOUISVILLE & N. R. CO. v. DILLARD.
• Court: Tennessee Supreme Court

86 S.W. 313

114 Tenn. 240

LOUISVILLE & N. R. CO. v. DILLARD.

Supreme Court of Tennessee.

March 18, 1905

Error to Circuit Court, Sumner County; B. D. Bell, Judge.

Action by E. C. Dillard against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Seay & Seay, for plaintiff in error.

B. F Proctor and J. D. G. Morton, for defendant in error.

NEIL J.

This action was brought in the circuit court of Sumner county to recover damages for an injury inflicted upon the foot of the defendant in error in a collision that occurred in November 1902, at Hendersonville, on the line of the plaintiff in error, between a freight train and a passenger train. There were verdict and judgment in the court below, and the railway company, after motion for a new trial had been overruled appealed and assigned errors.

The defendant in error was a brakeman on the freight train. The declaration contained counts on the negligence of the train dispatcher, the negligence of the conductor of the freight train, and the negligence of the conductor of the passenger train. To the last-mentioned count--the third--there was a demurrer filed, raising the question that the conductor on the passenger train stood in the relation of fellow servant to the train crew of the freight train, and hence to the defendant in error, the brakeman on that train, and therefore the company would not be liable to him for an injury caused by the negligence of such passenger conductor. This demurrer was overruled by the circuit court judge, and his action on this matter forms the subject of the first assignment of error, which we shall now proceed to consider.

The first assignment of error raises the question whether the conductor on the passenger train was the fellow servant of the brakeman on the freight train, or whether such conductor stood in the relation of vice principal to the brakeman.

In our latest case upon the subject (Railroad v. Edwards, 111 Tenn. 31, 76 S.W. 897) it is said:

"The mere superiority in dignity, grade, or compensation, in favor of one servant of a common principal over other servants, is not a mark by which to distinguish whether or not the former is a vice principal. *** The most general test is that, in order to be a vice principal, a servant must so far stand in the place of his master as to be charged in the particular matter with the performance of a duty towards the inferior which, under the law, the master owes to such servant, as furnishing tools (Guthrie v. Railroad, 11 Lea 372, 47 Am. Rep. 286) or machinery and appliances (Railroad v. Lahr, 86 Tenn. 335, 341, 6 S.W. 663), or giving orders with respect to work to be done by the subordinate (Railroad v. Handman, 13 Lea, 423, 429).

"A test frequently stated in our cases is the authority to give orders, as a vice principal, to the subordinate servant, in directing him when, where, and bow to work. ***

"Some illustrations of the foregoing are seen in the following cases: Railroad v. Bowler, 9 Heisk. 866; Railroad v. Northington, 91 Tenn. 56, 17 S.W. 880, 16 L. R. A. 268; Railroad v. Lawson, 101 Tenn. 408, 409, 47 S.W. 489. In these cases a section boss was held to stand as a vice principal to the section hands under him because he had power to order them with respect to their work, and also because it was his duty to see that they had proper tools with which to work. In Railroad v. Collins, 85 Tenn. 227, 1 S.W. 883, and Railroad v. Martin, 87 Tenn. 398, 10 S.W. 772, 3 L. R. A. 282, it was held that the engineer was the vice principal of the brakeman on a train, when, in the absence of the conductor, he had power to give the brakeman orders in respect to his work, but otherwise not; and in Railroad v. Wright, 100 Tenn. 56, 42 S.W. 1065. It was held that the conductor stands as vice principal to all of the train force, because they are all under his orders." To same effect, Railroad v. Spence, 93 Tenn. 173, 23 S.W. 211, 42 Am. St. Rep. 907.

The conductor of the passenger train in question, however, had no power to give orders to the brakeman on the freight train. This ground for adjudging the relation of vice principal and of servant thereunder did not, therefore, exist.

Was the conductor of the passenger train charged with any of the personal duties of the master towards the brakeman on the freight train? Was he charged with the duty of furnishing tools and appliances or a safe place to work? There is nothing to show that he was charged with such duties.

Was the passenger conductor in charge of, or engaged in, a separate department of the master's business?

In this state the departmental doctrine is recognized in railway cases. The grounds on which it rests are thus stated in Coal Creek Mining Company v. Davis, 90 Tenn. 711, 719, 720, 18 S.W. 387, 389:

"The doctrine rests upon the theory that the vast extent of the business of railway companies has held to the division of their business into separate and distinct departments; that by reason of this division a servant in one branch or department has no sort of association or connection with one in another department; that this absence of association gives the servant no opportunity of observing the character of a servant in another department of labor, and no opportunity to guard against the negligence of such servant. The want of consociation is the idea underlying this limitation. This rule has not been extended by us beyond railroad corporations, and we are not disposed to extend it further than to the class of employments to which it has been heretofore limited."

Under this doctrine it has been held that a track repairer was in a different department from, and hence not the fellow servant of, the crew of a train running upon the track (Haynes v. Railroad Co., 3 Cold. 222); for the same reason, that a section foreman was not the fellow servant of the train crew (Railroad v. Carroll, 6 Heisk. 347, 361); that a watchman was not the fellow servant of an engineer ( Railroad v. Robertson, 9 Heisk. 276); a telegraph operator at a way station not the fellow servant of the conductor of a train (Railroad Co. v. De Armond, 86 Tenn. 73, 5 S.W. 600, 6 Am. St. Rep. 816); a car inspector not the fellow servant of the crew of a switch engine ( Taylor v. Railroad Co., 93 Tenn. 307, 27 S.W. 663); a depot agent not the fellow servant of the conductor of a train (Railroad Co. v. Jackson, 106 Tenn. 438, 61 S.W. 771); a bridge crew not the fellow servant of the crew of a freight train (Freeman v. Railroad, 107 Tenn. 340, 64 S.W. 1); and an engineer not the fellow servant of a telegraph operator (Railroad Co. v. Bentz, 108 Tenn. 670, 69 S.W. 317, 58 L. R. A. 690, 91 Am. St. Rep. 763).

We have no case holding that separate trains constitute separate and distinct departments of railway service, nor do we think they can be so treated on principle. The reason underlying the departmental doctrine resides in, as already stated, the need of consociation to enable co-employés to judge of the caution, diligence, and efficiency of each other, in order that they may properly protect themselves against negligence. In distinct departments of the service they are regarded as constantly working apart from each other, without the opportunity of mutual observation and criticism. This reason, however, cannot be held to apply to the crews of different trains running upon the tracks of the same company. It does not appear that such crews are permanently attached to any special trains. Moreover, even if not associated upon the same train, the crews of each train, in passing and repassing and in mingling with each other in the handling of traffic in the course of their work, necessarily have an opportunity of judging to some extent how the various trains are managed by the people who man them. At best, the amelioration of the dangers incident to a hazardous business cannot be very great for the servants of a common master, even when they work in the same department, where the number of such co-employés is great, as very often happens in the railway business, and in other kinds of business.

If the conductor of the passenger train in question had no control over the brakeman on the freight train, or was not charged with any duty of the master towards him, as in the furnishing of tools and appliances or a safe place to work, or was not in a different department of the master's service (and we have seen that he had no such powers and bore no such relation), which are the only exceptions our cases recognize as taking co-employés out of the class of fellow servants, then the said conductor and brakeman were fellow servants, and the master was not liable for the injuries inflicted upon one by the negligence of the other. This conclusion seems inevitable, on principle.

The weight of authority likewise supports this conclusion. Baltimore & O. R. Co....