Louisville & Nashville R.R. Co. v. Robertson

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 276
• Parties: THE LOUISVILLE & NASHVILLE RAILROAD COMPANY v. MARY ROBERTSON, Adm'x.
• Court: Tennessee Supreme Court

56 Tenn. 276

THE LOUISVILLE & NASHVILLE RAILROAD COMPANY

v.MARY ROBERTSON, Adm'x.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the 1st Circuit Court, September Term, 1870. C. W. HEISKELL., J.

STEPHENS & SMITH for appellant.

P. J. MULVIHILL for appellee.

MCFARLAND, J., delivered the opinion of the Court--

Justices TURNEY and SNEED dissenting.

Mary Robertson, as administratrix of the estate of her husband, C. N. Robertson, brought this action for the use of herself and children, under the provisions of the statute, charging that the death of her husband was caused by the wrongful acts and omissions of the defendant. Verdict and judgment were rendered in her favor for $15,000; from which the defendant has appealed in error.

The defendant was the lessee of the Memphis & Ohio Railroad, and was at the time operating the road running into the city of Memphis. About 10 o'clock the morning of the accident, a freight train arrived by the road, and in accordance with the custom, took a side track, there being at the place three parallel tracks. The freight train of cars was deposited on the north track, the engine and tender cut loose, run across into the middle or main track, and then backed out, tender foremost. This was the daily custom. The deceased, Robertson, was an employe of the company, as watchman. Among other things, it was his duty to examine the freight cars upon their arrival, see their condition, take down their number, etc., and make his report to another officer. Upon the arrival of this train, he at once set about this duty. He was walking along by the side of the train of cars, with his book and pencil in his hands, looking up at the cars and apparently taking down their numbers. His side, and at times his back, was turned in the direction of the engine and tender, then backing towards him. Part of the time he was on the main or middle track, upon which the engine was backing. The engine and tender under the control of Jones, engineer, continued to back along the track at the rate of three or four miles per hour, ringing the bell constantly. No one was on the rear of the tender, then in front, but both the engineer and fireman were at their usual place in the engine. Robertson was observed by the engineer Jones, at a considerable distance, and was seen by him until he was hidden from view by the wood upon the tender, when the engine or tender was within about one hundred and twenty-five feet of him. No effort was made to stop the engine. Jones knew Robertson and his employment, and supposed he would step off at the proper time. His danger was first discovered by Donahue, an engineer upon another engine, coming from the other direction: he hallowed and blew his whistle. Jones stopped his engine, but too late, Robertson was run over and killed. Jones could have stopped his engine, going at the rate then running, within forty feet. Robertson could probably have stepped off the track safely after the engine came within some twenty or thirty feet of him. He remained on the track too long. The proof makes it probable, that in attempting to step from the track, he slipped and fell, owing to its wet and slippery condition. Why he did not leave the track sooner does not appear. This is a general statement of the occurrence, sufficient for our purpose.

Many questions have been made and argued for a reversal.

1st. It is argued, that there can be no recovery, for the reason that one employe cannot recover for the acts or negligence of his fellow servant or employee, engaged in a common employment. Various authorities have been referred to. We do not deem it proper to review these authorities, or to discuss the question, for the reason that it has been fully considered by this Court, in a very recent case--the case of the N. & C. R. R. Co. and The M. & C. R. R. Co. v. J. M. Carroll, Adm'r. In that case the general principle as above stated, is upon the authorities in this State admitted--but a distinction is taken as to what constitutes a fellow servant or employe in such cases.

In that case, Judge Freeman delivering the opinion of the Court, laid down the distinction as follows: “The rule, we hold, can not be held to apply as between an employe in one department of the work of a railroad company, separate, distinct and apart from the work of the other employe, by whom he is injured, which he has no immediate or necessary connnection with.” We deem it unnecessary to do more than to approve the doctrine of that case, and refer to it, as containing the principles fully governing this. We hold that the plaintiff's action on this ground is not defeated.

The next question, and one of importance,...