Nashville & Chattanooga R.R. Co. v. Carroll

• Decision Date: 30 September 1871
• Citation: 53 Tenn. 347
• Court: Tennessee Supreme Court
• Parties: Nashville & Chattanooga Railroad Company and Memphis & Charleston Railroad Company v. J. M. Carroll, Adm'r, et als.

53 Tenn. 347

Nashville & Chattanooga Railroad Company and Memphis & Charleston Railroad Company

v.J. M. Carroll, Adm'r, et als.

Supreme Court of Tennessee.

September Term, 1871.

FROM HAMILTON.

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

W. M. INGE and TOMLINSON FORT for Plaintiffs in Error.

NASH H. BURT and VANDYKE, COOKE & VANDYKE for Defendants in Error.

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

This suit is brought by Carroll, administrator of John Hinton, for the use and benefit of the widow and children, to recover damages for killing said Hinton, by running a train of cars over a hand-car, on which said Hinton was at the time.

There are several counts in the declaration, in one of which the facts are set out at large, and among others, that said Hinton was an employee of the Nashville & Chattanooga Railroad Company, on which road the killing was done. We need not notice the pleadings at length, farther than to say, that the gravamen of the complaint is the negligence of the company or companies, by their agents, by which the injury was done.

A demurrer was filed to the declaration by both companies sued. Only one point raised by the demurrer need to be noticed here, that is the point made by the Nashville & Chattanooga Railroad Company, that the “declaration showed on its face that the plaintiff's intestate was an employee of said company, and fails to show such a state of facts as entitles him to a recovery against them.” The demurrers were overruled, and pleas of not guilty, with notices of special matters of defense filed, on which issues were ultimately made and the case tried by a jury, who rendered a verdict for $10,000, under charge of the court, from which there is an appeal in error to this court.

It is proper to state here, that the notice filed by the Memphis & Charleston Railroad Company, stated as matter to be relied on in defense, “that Hinton was killed by a train under the management and control of the officers and agents of the Nashville & Chattanooga Railroad Company, and that the Memphis & Charleston road did not own nor control said road or track, nor train by which said accident occurred, at the point where it happened; that is, between Stephenson, Alabama and Chattanooga, Tennessee.”

They further gave notice of defense, that Hinton was killed by his own negligence, in such way that defendant was not liable. The ground of defense stated by the Memphis & Charleston Railroad, that they did not own the road, was stricken out by the court on motion, to which it excepted. An amended count was filed by the plaintiff, in which it was alleged that the injury was caused by the careless and negligent running of a train of defendants' by their agents, which agents were superior in authority to the deceased in running said train. Several questions are presented and urged here for reversal, which we will proceed to notice, as far as deemed material for decision of the case.

The Nashville and Chattanooga company had entered into an agreement by which it was to transfer the freights and passengers of the Memphis & Charleston road, from the point of intersection at Stephenson to Chattanooga, on their track, in the cars of the said Memphis & Charleston road. By the terms of said contract, as between the companies, this was to be done at the risk of the Memphis & Charleston road, except for such damages as were clearly the result of negligence on part of the Nashville & Chattanooga Railroad Company. In case of suit against the Chattanooga company for other damage than that caused by its own negligence, it was to be indemnified by the Memphis & Charleston road, and in case of suit against the Memphis & Charleston road for damages caused by the fault or negligence of the Nashville & Chattanooga company, the Memphis & Charleston company was in like manner to be indemnified by the other company. A rate of charges for each passenger, and also for freights, was agreed on, at which rates the Memphis & Charleston road agreed to account to the Nashville & Chattanooga company for the passage of such passengers and freight over their road.

There are a number of stipulations between said companies regulating the details of this arrangement, which need not be noticed here. Among others, it was however provided, that the passenger trains of the Memphis and Charleston road shall be accompanied by the conductor of said road and their train hands, without charge. It was however agreed, that the Memphis & Charleston cars were to be transferred by the regular passenger and freight trains on said Nashville & Chattanooga road, extraordinary casualties excepted; and it was further agreed that the Nashville & Chattanooga road were to keep a locomotive at Stephenson, to be used in emergencies by the Charleston road upon the road of the Nashville & Chattanooga company to complete connections, or otherwise such use to be at the risk of the Memphis & Charleston road for all accident or damage occasioned by its own fault or negligence; and it was further stipulated, that in case of emergency, the Memphis & Charleston Railroad Company might use their own locomotive upon the Nashville & Chattanooga road at the risk of the Memphis & Charleston road for accidents and damages.

The proofs shows that the deceased was in the employ of the Nashville & Chattanooga Railroad Company at the time of his death as section foreman, or “boss,” as he is called, and was killed by an engine and train belonging to the Memphis & Charleston road, running on the Nashville & Chattanooga Railroad track. It appears that the train by which Hinton was killed had been delayed at Courtland, Alabama, by a sleeping car running off the track and obstructing it before the arrival of said train at that point. A dispatch was sent to the Assistant Superintendent, Mr. Williams, of the Memphis & Charleston road, informing him of the delay of this train, known in the record as No. 3. Williams telegraphed the fact to the Superintendent of the Nashville & Chattanooga Railroad, at Nashville, in order that he might arrange for the passage of this delayed train. When this train reached Stephenson, a conductor of the Nashville & Chattanooga road took charge of it as conductor, but it was run by the engineer and employees of the Memphis & Charleston road, under his orders, and the conductor took charge of the train under the orders of Thomas, the General Superintendent of the Nashville & Chattanooga road. This seems to have been the custom under the contract, when no engine of the Nashville & Chattanooga road was at Stephenson in such an emergency.

Under this state of facts it is insisted that the train was entirely under the charge and control of the Nashville & Chattanooga Railroad Company, they having undertaken, as “contractors,” to carry the trains of the Memphis & Charleston road through from Stephenson to Chattanooga. The court instructed the jury that this contract, herein before referred to, between the Nashville & Chattanooga Railroad Company and the Memphis & Charleson Railroad Company, was irrelevant, and excluded the same from consideration of the jury. He then charged them that they should look to the testimony and see if the deceased was killed by the locomotive, cars or train of defendants, or either one of them, and if so the plaintiff would be entitled to recover, unless precluded on the principles and law, as afterwards given by the court. He then tells the jury, in response to request of counsel of defendant, Memphis & Charleston Railroad Campany, that “if the proof satisfies your minds that the Memphis & Charleston Company at Stephenson, or any other point, before the arrival of the cars at the place where the injury occurred, surrendered all control and custody over the cars and engine and committed them to the exclusive charge and control of the Nashville & Chattanooga road, the Memphis & Charleston Railroad Company would not be liable, notwithstanding it owned the cars used on the track of the other road. “But,” he adds, that “if the jury were satisfied that the employees of both companies were engaged and co-operating in running the cars and jointly controlling them, the companies would both be liable.”

We hold this charge was substantially correct. It was a question of fact for the jury to determine whether the injury was done by the one company or the other, or both, through their agents and employees. Mr. Redfield, in his work on Railways, p. 591, states the rule to be that “a railway company is always responsible for an injury occasioned by want of proper care and prudence on the part of its servants in the management of a train which is under their exclusive care, management and control, though belonging to another company; and if such injury results from negligence of another company, which has a joint right with defendant to use defendants' track under a lease, and which is running trains over defendants' track on its own account, the defendants are not responsible.” The principle is, that where one has exclusive control and management of the train, whether owner or not of the cars, it is responsible for damages for wrong; and if this be so, it follows necessarily that if in fact that control be joint, and the train jointly under the control of agents of the two companies, then both must be held responsible. Two persons may be joint masters, and thereby subject to a joint liability for the acts of servants or employees; and such joint liability may be converted into a several liability by the election of plaintiff to sue only one, which may be done in such a case. See Pars. Con., vol. 1, note 10, p. 106. In fact the liability of two corporations must depend on the same principle in the main as in case of private individuals. On this question there is no error in his Honor's charge of which the plaintiffs in error can complain.

The next question presented is as to the...