Nashville & Chattanooga R.R. Co. v. Elliott

• Decision Date: 31 December 1860
• Citation: 41 Tenn. 611
• Parties: NASHVILLE AND CHATTANOOGA RAILROAD COMPANY v. ELLIOTT.
• Court: Tennessee Supreme Court

41 Tenn. 611

NASHVILLE AND CHATTANOOGA RAILROAD COMPANY

v.ELLIOTT.

Supreme Court of Tennessee.

December, 1860.

FROM WARREN.

This was an action on the case brought by Elliott to recover damages for an injury to his person received whilst in the employ of the company. The jury at the August term, 1859, rendered a verdict in his favor for $2,000, Judge A. J. Marchbanks presiding. The defendant appealed.

Frank Estell and Arthur S. Colyar, for the plaintiff in error.

Peter Turney and John Spurlock, for the defendant in error.

McKinney, J., delivered the opinion of the court.

This was an action on the case brought by Elliott, to recover damages for an injury to his person while in the employ of the company. Judgment was rendered in his favor for $2,000.

It appears that Elliott had been employed by the company, at $30 per month, as a hand on a locomotive engine known as the “Cumberland,” and his business was to pass wood from the tender to the fireman. This engine was kept and used for the purpose of pushing freight trains up the Cumberland mountain at the tunnel, the grade on both sides being very heavy. On that part of the road on which this extra service was rendered there was a curved embankment of some twelve or fourteen hundred feet in length, and, a breach having been made in the embankment by a flood, a trestle-frame bridge was placed therein, of some one hundred and fifty feet in length. The bridge, it seems, was placed some little distance out of the old track, in consequence of which, especially at one end, the curve “was made harder,” and perhaps more difficult for trains to pass from the embankment onto the bridge. Shortly after the completion of the bridge, the engine “Cumberland,” in pushing a freight train, immediately after getting on the bridge, ran off the track and fell over, killing the fireman, and inflicting injuries upon Elliott by which he is, to some extent, disabled for life.

Two grounds of recovery were assumed: first, that the injury was occasioned by the imperfect construction of the bridge; and, secondly, that the engine, from its construction, was not adapted to run safely in a curve.

The “Cumberland” was what is called “an eight-wheel connected engine,” without trucks, weighing nearly thirty tons. The weight of the proof is that it was a first-class and perfect engine of its kind. But there is some conflict in the proof as to its adaptedness to the particular purposes for which it was used. The proof is satisfactory, on the one hand, that an engine of this construction is peculiarly suited for heavy freight trains where there are high grades to be overcome, because of the greater adhesion of the wheels to the iron rails; and because, likewise, such an engine can be run backwards with as much ease and safety as forwards; and that, in both these respects, it has greatly the advantage of a four-wheel engine with trucks. But, on the other hand, the weight of the proof seems to be that the latter kind of engine is safer and better adapted for running over curves; that the trucks follow the curve and guide the engine with greater facility and certainty than the larger wheels of the former kind of engine, which, from the construction of the machine, have but a slight lateral motion, and consequently incline to pursue a straight line. Upon this point, however,, the proof is conflicting, and facts are stated by some of the witnesses, purporting to be the result of actual experiments, which tend to show that the “Cumberland” had followed curves which ordinary four-wheeled engines with trucks had failed to do without running off.It is shown in the proof that the “Cumberland” was procured for this particular service, and that it had been thus used for a period of two years or more before the accident referred to, without any complaint, so far as we learn from the record, that it was in any respect unsuited to the service or at all unadapted to any curvature of the road.

Upon the whole record, if the question of fact were open for our determination, we should hesitate to say that the company had been guilty of any such negligence or fault, either as respects the construction of the bridge or the engine, as would entitle Elliott, as their employee, to maintain his action.

But the facts have been settled by the jury, and if the instructions of the court shall be found unexceptionable, we are not at liberty to disturb their verdict.

It should be stated that the engineer who conducted the locomotive at the time it ran off the bridge, and who had been employed in that capacity for some five months before, was examined as a witness for the plaintiff. He stated that the engine's running off was not by reason of any negligence on his part, or of the other hands. He further stated that, after the bridge was completed, he had run the engine over it safely five times, and in crossing the sixth time it fell off; that there is a difference in running on wet and dry rails; that when the rails are wet the friction is less, and “the engine will slip around the rails more easily;” that in crossing the bridge the first four times, the rails were wet by rain, and the fifth time he wet the rails before crossing, but the last time, when the engine ran off, he omitted to do so, though the rails were dry.

In considering this case, it must be borne in mind that the servant of a railway company who receives an injury while in the performance of the duties of his service stands upon a very different footing from a passenger travelling on the train, as regards the liability of the company. Although railway companies are not held liable as insurers of the safety of passengers, as they are as common carriers of goods and of the baggage of passengers, yet the rule in regard to the degree of care and vigilance exacted from them, as laid down in several cases, is an extremely rigorous one. They are held bound to the highest degree of care and diligence, and are answerable for all injuries to passengers resulting from the slightest negligence or want of skill or prudence. Redf. on Rys., ch. 17, § 1, and notes; 14 How. 483.

But as to the servants of the company the rule is different. The servant on entering into the service knows, or is taken to know, that there are extraordinary dangers inseparable from such a service, which human care and foresight cannot always guard against; he is not bound to incur these known perils incident to the service, and may refuse to do so, or he may, as far as can be done, provide for them, in the rate of compensation or otherwise. But 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 or care, but likewise the risk of injuries from the negligence of his fellow servants. This doctrine, however, must be taken with the qualification that the employer must take care not to expose the servant to any risk, by associating him with other servants wanting in ordinary skill or care, or by the use of unsafe or unsuitable machinery, or other culpable negligence. Redf. on Rys., ch. 17, §§ 1-3, and notes.

Having stated these general principles, we proceed to notice the...