Nashville & Chattanooga R.R. Co. v. Chumley

• Decision Date: 30 September 1871
• Parties: Nashville & Chattanooga Railroad Co. v. R. W. Chumley.
• Court: Tennessee Supreme Court

53 Tenn. 325

Nashville & Chattanooga Railroad Co.

v.R. W. Chumley.

Supreme Court of Tennessee.

September Term, 1871.

FROM HAMILTON.

Appeal in error from the judgment of the Circuit Court, July Term, 1871. J. B. HOYL, J.

S. A. Key for plaintiff in error, insisted:

1. The doctrine of recoupment is well settled in this State: citing Overton v. Phelan, 2 Head, 445;Porter v. Wood, 3 Hum., 56;Whittaker v. Pullen, 3 Hum., 466.

2. Admitting that the damages which may be recouped must arise out of the transaction or contract on which the suit is brought, it is insisted that this case comes within the rule. A servant entering the service of a great railroad company is bound to know that the disastrous consequences flow as well from exceeding his duty, as failing to do what is assigned to him. And he must be held to have undertaken, as part of the contract of service, to faithfully observe all rules established to preserve life and property. Damages, therefore, arising from a failure to observe a known rule, would arise from the servant's breach of the contract on which he sues, and would be proper ground for a cross action, and hence of recoupment.

J. B. Cooke for defendant in error, insisted that the damages sought to be recouped did not arise from a breach of the contract of service, or a failure of the servant to do his duty, but from a tort entirely outside of, and not connected with, the duty assigned him as an employee of the plaintiff in error.

NELSON, J., delivered the opinion of the Court.

This action of debt was commenced before a justice, and tried, upon appeal, in the Circuit Court at Chattanooga. Chumley, the plaintiff below, sued for the amount of an account due him as one of the employees of the company. There is no dispute as to the account, but the matters in controversy arise upon the following facts: Chumley was employed by the company as driver of a switch engine, his duties being to transfer cars from one track to another, and transfer cars to connecting roads. Early in the morning of the 14th of October, 1870, the yard-master informed him that he had heard a signal of distress from the switch engine, and directed him to take an engine and go to its relief. They started with it accordingly, but without flag or signal light, on a very foggy morning, and had not proceeded more than about three hundred yards when they came in collision with the switch engine, and damages were sustained by the company to the amount of five or six hundred dollars. Under the regulations of the company, which were known to Chumley, the yard-master had no authority to give his directions as to his engine, and he could not move it without instructions from the local agent. It was shown in evidence that the yard-master was mistaken as to the signal of distress, and...