Louisville & Nashville R.R. Co. v. Bowler
| Decision Date | 30 April 1872 |
| Parties | LOUISVILLE & NASHVILLE RAILROAD COMPANY v. PATRICK BOWLER. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM GIBSON.
Appeal in error from the judgment of the Law Court at Humboldt, July Term, 1873. G. B. BLACK, J.
W. H. STEPHENS, HALL & WILLIAMSON, W. J. MCFARLAND for appellant.
P. J. MULVIHILL, JOHNSON & SHARP for appellee.
That part of the charge, to which objection is mainly urged and for which a reversal is asked, is in the language following: “If you find further from the proof, that John Green was the Section Boss or foreman of said section, in the employ of the defendant, and employed the plaintiff, as section laborer, to work under him, and that by the wrongful or neglectful acts of Green, in and about the business of the defendant, the plaintiff was injured, then the defendant would be liable for the injury.”
This extract must be considered in connection with the concluding paragraph of the charge, delivered at the request of the defendant's attorney-- “If you find, from the evidence, that the plaintiff could have prevented the accident by using ordinary care, then he would not be entitled to recover, unless the injury was inflicted by the gross negligence of the defendant.”
It is here insisted that the plaintiff in error is not answerable to Bowler for an injury done to him through the carelessness or want of skill on the part of the “ Section Boss,” Green--both being engaged in the same service; and, in support of this position, we have been referred to several authorities, all of which, that were within our reach, we have carefully read and considered, but deem it necessary to notice only such as more nearly relate to the question.
The case of Gilshoman v. Stony Brook Railroad Corporation, 10 Cushing, 231, holds that the plaintiff, a laborer in the construction of a railroad bed, could maintain no action for an injury resulting to him from a collision caused by the negligence of the company's servants in charge of the train, although both servants were not in common employment--the plaintiff not being engaged in any duty connected with the running of the trains.
The only notice we give this case is, that it is in direct conflict with the holding of this Court at Knoxville, at its December Term, 1871, in the case of The Nashville & Chattanooga and The Memphis & Charleston Railroad Co's. v. J. M. Carroll, Adm'r--opinion by Judge Freeman.a1
Hayes v. The Western Railroad Corporation, 3 Cush., 272, is a case in which one brakesman was injured by the negligence of another brakesman, and in which the counsel for the plaintiff endeavored to distinguish it from the case of Farwell v. The Boston and Worcester Railroad, by the fact that in the latter case, the party in fault and the party injured were of the same grade. To which the Court says: So the question here was not presented in that case.
As said by Robertson, C. J., in L. & N. R. R. Co. v. Collins: “In every class of cases of bailment or trust, the requisite care is proportioned to the danger of neglect, and the difficulty of conservative management: ordinary care, in many classes of cases, might be ordinary neglect, and ordinary neglect might be gross neglect in steam operations on a railway.” 2 Duvall Ky. Rep., 114.
We may enlarge the statement of the principle by adding, that ordinary neglect may be gross neglect in the conduct of work upon railways over which trains are habitually passing, and upon which construction trains or burthen cars, are kept and used for repair purposes.
We appropriate the idea and, in the main, the language of the Court in the case last quoted, and ...
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