Louisville & N. Ry. Co. v. Lahr

• Decision Date: 04 February 1888
• Parties: Louisville & N. Ry. Co. v. Lahr.
• Court: Tennessee Supreme Court

6 S.W. 663

86 Tenn. 335

Louisville & N. Ry. Co. v. Lahr.

Supreme Court of Tennessee.

February 4, 1888

Appeal from circuit court, Robertson county; J. C. STARK, Judge.

Action by J. M. Lahr against the Louisville & Nashville Railway Company, for personal injuries received by him while in their employ. Judgment for plaintiff. Defendant appeals.

J W. Judd, for appellant.

J. & A. E. Garner, for appellee.

LURTON J.

The appellee was one of a gang of carpenters in the employment of the appellant, and sustained the injury while employed in repairing a high railway trestle, through the alleged negligence of one B. F. Ligar, a fellow-servant, who was foreman of the gang. The proof shows the lower bent, upon which work was being done, was held in position by means of guy-ropes securely fastened to the top of the trestle, and that the workmen were accustomed to descend by means of these guy-ropes from the upper to the lower. It also appears that there was a long rope partly lying in a coil upon the top of the trestle, and that one end of this rope hung down below the top of the trestle, but whether the lower end reached the ground does not clearly appear. This loose rope was used as a means of lowering tools to the men at work upon the lower bent. There had been no change in the position or fastenings of these ropes between the time of the accident and the beginning of the work that morning. The statement of Lahr is that, having finished the particular work upon which he was engaged upon one of the upper bents, and just a few feet below the top of the trestle, and intending to go down to a lower, for the purpose of aiding a fellow-workman who was engaged upon the lower bent, he caught hold of this lower rope, and, jerking it, said to Ligar, who was on top of the trestle, and just over him, "Is this rope fastened?" and that Ligar replied, "Yes." That thereupon he handed his hammer up to Ligar, that it might be lowered to him when he had reached his place, and, taking hold of the rope, threw himself off the bent upon which he was standing, and was precipitated a distance of 40 feet to the ground below; the rope upon which he undertook to descend, as before stated, not being fastened, but lying in a loose coil upon the top of the trestle.

There is no proof that he undertook to make this descent in obedience to any immediate order of his superior, and none that Ligar had any knowledge that it was his purpose to so descend. When Lahr handed his hammer up to Ligar, he did not tell him that he was going down, and, upon the contrary Ligar says he supposed that he was coming up; that, having finished what he had to do upon the upper bent, his duty was to return to the top. There is no proof as to whether Ligar was charged with any duty concerning the descent of the men to the lower bents, and none that he undertook to look to the fastening of the ropes, or the use of the ropes as a manner of descent.

The primary use of the fastened ropes were that they might serve as guy-ropes, and, from all that appears, the use of these guy-ropes as a means of descent was optional with the men. Certainly, the record is silent as to any duty imposed upon or assumed by Ligar to provide means of safe descent. Ligar says that the rope that Lahr had hold of at the time he asked if the rope was fastened was one of the guy-ropes, but, as the evidence upon this fact is conflicting, we shall assume that Ligar was himself mistaken as to the rope Lahr asked him about. The inquiry was a natural one for Lahr to make, but it is one which he might, and doubtless would, have made of any one near enough to examine and see.

This brings us to a consideration of the question as to whether the railroad company is responsible, under these facts, for the consequence of the mistake made by Ligar. "In this state," says Judge COOPER, in delivering the opinion of this court in the case of Railroad v. Handman, "we have adopted the general rule established by the authorities regulating the relative rights of master and servant. The servant, on entering into service knows, or is taken to know, that there are extraordinary dangers, inseparable from such service, which human care and foresight cannot always guard against. If he voluntarily engages to serve, in view of all the hazards to which he will be exposed, it is well settled that, as between himself and his employer, he undertakes to run all the ordinary risks of the service; and this includes the risk of injuries, not only from his own want of skill and care, but likewise the risks of injuries from the negligence of his fellow-servants." 13 Lea, 425. This rule has been steadily adhered to...