Louisville & N.R. Co. v. Cheatham

• Decision Date: 18 March 1907
• Citation: 100 S.W. 902,118 Tenn. 160
• Parties: LOUISVILLE & N. R. CO. ET AL. v. CHEATHAM.
• Court: Tennessee Supreme Court

100 S.W. 902

118 Tenn. 160

LOUISVILLE & N. R. CO. ET AL. v. CHEATHAM.

Supreme Court of Tennessee.

March 18, 1907

Appeal from Circuit Court, Robertson County; B. D. Bell, Judge.

Action by H. L. W. Cheatham against the Louisville & Nashville Railroad Company and Walton, Wilson, Rodes & Co. There was a judgment for plaintiff against the railroad company, and a verdict in favor of Walton, Wilson, Rodes & Co. From the judgment the railroad company and Cheatham appeal. Judgment against the railroad company affirmed. Judgment in favor of Walton, Wilson, Rodes & Co. reversed, and cause remanded for new trial.

John Bell Keble, A. E. Garner, and Ed T. Seay, for appellant railroad company. True & Dorsey, Joel B. Fort, for appellant Cheatham. R. L. Peck, for appellees.

McALISTER J.

The defendant in error brought this suit in the circuit court at Springfield against the defendants, the Louisville & Nashville Railroad Company and Walton, Wilson, Rodes & Co. to recover damages for personal injuries. There was a verdict and judgment in favor of the plaintiff for $500 against the Louisville & Nashville Railroad Company, and a verdict in favor of Walton, Wilson, Rodes & Co. The Louisville & Nashville Railroad Company and H. L. W. Cheatham, the plaintiff below, appealed from the judgment of the circuit court, and have assigned errors in this court. The record discloses that on and before the 6th day of September, 1905 the defendant railroad company was engaged in reducing grades and taking out curves in its line of railway through the village of Cedar Hill, and in prosecuting this work had employed the defendants Walton, Wilson, Rodes & Co. as contractors. On the 6th day of September, 1905, these contractors cut a deep hole or excavation in a sidewalk on Main street, and left the same during the night without a barricade or light to apprise the public of the danger.

It appears that defendant company maintained a depot or station in the town of Cedar Hill, in the northeast corner formed by the intersection of its railroad track and Main street, where it sold tickets to passengers and transacted other business. It further appears that the passage provided by the railroad company from its said ticket office to the place where passengers embarked on the trains was over and along this sidewalk where the excavation in question had been made.

It further appears that on the night of September 6, 1905, the plaintiff went to the defendant's ticket office and purchased a ticket from Cedar Hill to his home at Springfield, and then proceeded along the usual way to take passage on one of the defendant's trains. The plaintiff testified that it was dark, and not knowing of the existence of the excavation in the sidewalk, and not being admonished thereof by any light or barricade, that he unwittingly walked into the same and sustained serious personal injuries. The plaintiff claimed to have been wounded and injured in the region of the kidneys, in the spine, and in his left leg that he suffered greatly in body and mind, and by reason of his said injuries lost about 25 or 30 pounds of flesh, and has been incapacitated to perform any kind of labor, and has been permanently injured.

The theory of the railroad, relied upon in the court below and now earnestly pressed in this court, is that upon the facts disclosed in the record Walton, Wilson, Rodes & Co. were independent contractors, and that the injuries were sustained by the plaintiff in consequence of their negligence in not protecting the excavation made by them in the sidewalk, and that no liability for said injury attaches to said railroad company.

The contract between the Louisville & Nashville Railroad Company and Walton, Wilson, Rodes & Co. for the performance of this work was in writing, and was construed by the circuit judge not to create the relation of independent contractor between the railroad and said firm. This construction of the contract is now claimed to be erroneous, and this assignment of error presents the principal question in the record. In the disposition of this question it is necessary to bring in review the prominent and distinguishing features of this contract which are relied on by the Louisville & Nashville Railroad Company to constitute the firm of Walton, Wilson, Rodes & Co., independent contractors:

"(1) That the said contractors are to construct and finish in a good, skillful, substantial, and workmanlike manner, and with all the requisite labor, teams, tools, engines, and machinery, and with materials sufficient and proper of their several kinds complete all and singular the grading, masonry, and such other work as may be required on the Henderson Division from a point 1,800 feet south of mile post 296 from St. Louis to a point 2,000 feet south of mile post 271 from St. Louis, in order to construct a new railroad roadbed where required between said points, and to change the grade of the existing roadbed where required between said points, said new railroad roadbed to be partly parallel to the existing roadbed and partly on new location, not parallel to the existing roadbed, and such grading as may be required for temporary position of the railroad company's tracks on the line of the Louisville & Nashville Railroad, according to the specifications, plans, profiles, sections, and drawings exhibited by the engineer of the railroad company at his office in Louisville, Ky., or by said specifications, plans, profiles, sections, or drawings implied or to be reasonably inferred therefrom, and will abide by, perform, follow, and fulfill all the stipulations, requisitions, and directions in said specifications set forth, which are hereby attached and made part of this contract.

Said labor, teams, tools, engines, machinery, and materials to be furnished and the said work to be done by the said contractors to the satisfaction of the engineer of the railroad company, according to the said specifications, plans, profiles, and sections, according to such working plans and explanatory drawings and instructions as may from time to time be furnished by said engineer. * * *

And it is further agreed that said engineer shall have the right to make any alteration that may be hereafter determined by him as necessary or desirable in the location, line, grade, plan, form, or dimensions of the work, either before or after the commencement of the same, and, in case such alterations increase the quantities, the said contractors shall be paid for such excess at the contract rates herein specified; but, should such alterations diminish the quantity or extent of the work to be done, they shall not under any circumstances be construed as constituting, and shall not constitute, a claim for damages, nor shall any claim be made on account of anticipated profits on the work that may be altered and dispensed with--the intent of this provision being that only the work absolutely done shall be paid for and at the price named in the schedule or list," etc.

"And the said contractors further agree that they will not execute any work or make any modification or alteration in the work mentioned in said specifications, unless ordered in writing by the engineer, nor will they claim payment for the same unless such written order be produced," etc.

"The engineer shall decide on the quantity and quality of the work done, and his decision shall be final and conclusive. * * *

The contractors agree to pay and to hold the railroad company harmless from:

(a) All debts or dues of the demands or claims against the contractors, or against any subcontractors for services and labor performed or materials furnished in said work, for provisions or supplies, board of men and teams engaged upon said work, and debts, dues, demands or claims growing out of said work, whether like or unlike those enumerated.

(b) All claims for damages done by the contractors, subcontractors, or the employés of either, and to hold the railroad company harmless from all liens, garnishments, attachments, suits, causes of action in law or in equity, costs, expenses, and attorney's fees arising from or in connection with any or all the debts, dues, claims, demands, or damages in this and the preceding clause mentioned.

If, out of any monthly estimate paid to the contractors they shall fail to pay the wages of the laborers for that month, it shall be at the discretion of the engineer thereafter to provide for the payment of laborers for each month out of the estimate for the month, according to such rules as he shall prescribe.

The contractors shall, whenever requested to do so, furnish the engineer, in such detail as may be required by the engineer, statements in writing of all sums owed by the contractors or subcontractors for services rendered, labor performed, or material, supplies, tools, or machinery furnished or used in the performance of this contract.

It is further agreed and understood, if at any time the contractors shall refuse or neglect to prosecute the work with a force sufficient in the opinion of the engineer for its completion within the time specified in this agreement, then and in that case the engineer in charge, or such other person as the engineer may designate, may proceed to employ such a number of workmen, laborers, and overseers as may in the opinion of the said engineer be necessary to insure the completion of the work within the time mentioned at such wages as he may find it necessary or expedient to give, and charge the amount so paid to the contractors as a credit on the contract; or the said engineer may, at his discretion, for the failure to prosecute the work with an adequate force, or for noncompliance with his instructions in regard to the manner of construction, or for any other omission or...