Louisville & N.R. Co. v. Kenley

• Decision Date: 07 February 1893
• Citation: 21 S.W. 326,92 Tenn. 207
• Parties: LOUISVILLE & N. R. CO. v. KENLEY.
• Court: Tennessee Supreme Court

21 S.W. 326

92 Tenn. 207

LOUISVILLE & N. R. CO. v. KENLEY.

Supreme Court of Tennessee.

February 7, 1893

Appeal from circuit court, Davidson county; W. K. McAlister, Judge.

Action by D. B. Kenley against the Louisville & Nashville Railroad Company to recover damages for personal injuries caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

Baxter Smith, for plaintiff.

Steger Washington & Jackson, for defendant.

LURTON C.J.

The defendant in error, while in the discharge of his duty as a brakeman in the employ of the railroad company, sustained a serious injury, by which he lost an arm. He has recovered a judgment against the company, from which it has appealed. Many errors have been assigned, some of which will be disposed of orally, as involving no point requiring a written opinion. The negligence of the company was in an alleged defective "foot rest" and "hand hold," being appliances furnished by the company to aid brakemen in safely ascending to the brakes on the top of the caboose car.

The first and second assignments are, in effect, the same. They assign as error the ruling of the circuit judge in permitting, over objection, evidence that the plaintiff had made complaint to the conductor of the train in which this car was placed, and upon which plaintiff was braking. The substance of the objection advanced against this evidence was that the conductor has no power or agency in the construction or repairing of cars, and that he has only charge and control of the train, as delivered to him, from the time it is put in his charge until it arrives at its destination; that he has nothing to do with cars put into his train, but must take them just as they are turned over to him. We think this evidence was competent. The relation of "master and servant," "superior and inferior," exists between the conductor of a train and his subordinates engaged in the running and management of it. The rule is well settled in this state that, "the master is liable for injuries resulting to one servant from the negligence of another servant, who is the immediate superior of the first." "The rule," says Judge Cooper, "is based, not upon the idea of the relative rank of the two servants, or the general superiority of the one in position, intelligence 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." Railroad Co. v. Wheless, 10 Lea, 747; Railroad Co. v. Collins, 85 Tenn. 227, 1 S.W. 883. Thus, a section boss was held the superior, and to represent the master, as to the laborers under him, engaged in repairing the track, and the company held liable for an injury to such a section hand, resulting from the negligence of the boss. Railroad Co. v. Bowler, 9 Heisk, 870. A defective maul was furnished to a bridge carpenter by his section foreman, whereby the former was injured. The company was held liable for the negligence of the foreman, as standing for and representing the master. Guthrie v. Railroad Co., 11 Lea, 372. When a corporation acts at all, it must act through agents. If one of these agents, with respect to other agents, stands as the superior, and represents the master, because of their subordination to him, it must follow, as matter of law, that, within the scope of this relationship, the knowledge of this vice principal must be the knowledge of the common employer. This principle was applied in the early and leading case of Elliott v. Railroad Co., 1 Cold. 618. The plaintiff, Elliott, was employed on a locomotive engine, to pass wood from the tender back to the fireman. The engine was under the care and control of an engineer. It was one kept exclusively for pushing freight trains up a very steep grade on the Cumberland mountain. The engine was defective, and unfit for the work in which it was engaged. By reason of this defect it ran off the track, turned over, and injured the plaintiff. An important question in the case was as to the knowledge of the company as to the defective character of the engine and track. The trial judge ruled that the knowledge of the engineer was imputed to the company. The opinion was by McKinney, J., who said: "The established rule that notice to an agent in the transaction for which he is employed, and within the scope of the authority confided to him, is notice to the principal, applies equally to a corporation as to a natural person." "In general, the only mode in which a corporation aggregate can act is through the intervention of agents, either specially designated by the act of the incorporation, or appointed and authorized by the corporation in pursuance of it; and the corporation is responsible for the acts of the agent, and, of necessity, the knowledge of a fact by that agent, directly connected with the duties of the business confided to his care, must be chargeable to the corporation."

It is proper in this connection to consider the 6th, 7th, and 8th assignments of error. The company had introduced in evidence certain rules promulgated for the government of its employes. Rule 132 was in these words: "Conductors, flagmen brakemen, and train porters report to, and receive their instructions from, the master of trains." The court was requested to charge, and did charge, that certain rules which had been shown in evidence, including the rule just quoted, would be reasonable, "and that if the plaintiff failed to observe and obey the same, and was injured in consequence of said failure, or if his failure to observe the same was the proximate cause or materially contributed to the accident, he cannot recover in this action." In addition to this he was asked to charge as follows: "That if, under a rule of defendant in force at the time of the accident in question, it was the duty of brakemen to report to, and receive their instructions from, the master of trains, then and in that case, if there was a defect in the steps or hand hold at the end or ends of the caboose in question, it was the duty of the plaintiff to have reported that fact to the master of trains, and that that would have been notice to the company, and that under said rule no one except the master of trains would have been...