Nashville & Decatur R.R. Co. v. Jones

• Decision Date: 31 December 1871
• Citation: 56 Tenn. 27
• Court: Tennessee Supreme Court
• Parties: NASHVILLE & DECATUR RAILROAD CO. v. JONES, Adm'r.

56 Tenn. 27

NASHVILLE & DECATUR RAILROAD CO.

v.JONES, Adm'r.

Supreme Court of Tennessee.

December Term, 1871.

FROM DAVIDSON.

Appeal in error from the judgment of the Circuit Court, September Term, 1868. EUGENE CARY, J.

NATHANIEL BAXTER, EDMUND BAXTER, DAVID CAMPBELL, JOHN B. MCEWEN, JOHN MARSHALL for appellant.

WILLIAM B. BATE, FRANK E. WILLIAMS for appellee.

NICHOLSON, C. J., delivered the opinion of the Court.

This suit was brought by A. J. Jones, administrator of George Sweeny, against the Nashville & Decatur Railroad Company, to recover damages occasioned by the explosion of a steam boiler attached to one of the engines of that Company, from which explosion the death of Sweeny resulted. The action is sought to be maintained on two grounds: First, because the explosion was the result of the negligence of the agents of the Company; and second, because the material and structure of the boiler and engine were not such as the law requires.

Upon the trial of the cause, the jury rendered a verdict for the plaintiff for $9,500. The plaintiff entered a remittitur for $4,500, thereupon judgment was rendered for $5,000, and the railroad company appealed.

It appears in the evidence that Sweeny was employed by the company as fireman on the locomotive at the time its boiler exploded.

There is testimony in the record tending to show that Sweeny may have contributed to the explosion by improperly screwing down one of the valves a few minutes before the explosion occurred. On the other hand, there is testimony tending to show that the explosion was produced by the negligence of the engineer on the locomotive, in not having a sufficiency of water in the boiler; and also, that the material of the boiler was of bad quality, and its construction defective.

On the several matters of fact both sides adduced proof, and under the charge of the court the jury found the verdict for the plaintiff already referred to. The finding indicates clearly that the explosion was not produced by the negligence of Sweeny, but that it must have resulted either from the negligence of the engineer in not having a sufficiency of water, or from the negligenc of the company in not having an engine and boiler of the character to exempt them from liability for the explosion.

There is no such preponderance of the evidence against the verdict (if, indeed, there is any, which we do not decide) as would justify this court in disturbing the verdict. It must, therefore stand, unless there was some error of law in the instructions by the court to the jury.

Several errors in the charge of the court are relied on for a reversal, which we will proceed to notice:

1. It is said that there is error in the following instruction to the jury:

“If the accident happened as a consequence of the carelessness or imprudence of the deceased, or from his unauthorized and improper interference or intermeddling with the safety valve; or if the accident was the result of the conjoined carelessness of the deceased and the defendant, or any of its agents, then the plaintiff could not recover.”

The objection is not that the instruction is not correct as far as it goes, but that the Judge ought to have gone further, and instructed the jury that if the accident happened as the result of the carelessness of the deceased, conjoined with the defective character of the boiler, the plaintiff could not recover. No such additional instruction was requested; and therefore if the instruction would have been proper, the Judge can not now be put in error. But the instruction, as requested, could not have been properly given unless it had contained the qualification that the deceased must have known of the defective character of the boiler.

2. It is said there is error in the following instruction:

“If the defects in the boiler were known to the deceased, and he accepted service, or continued in the same on said engine with a full knowledge of such defects, the plaintiff could not recover.”

It is objected that the Judge ought to have gone further, and told the jury that if the deceased had equal means of knowledge with the defendants to have discovered the defects then he could not recover. It is a sufficient answer to this objection that the defendants made no request of the Judge for such additional charge.

3. It is next objected to the charge that the Judge instructs the jury that “if they shall find that the injury was caused by the carelessness of an employee of that company, occupying a superior and commanding position to that held by the deceased, then the plaintiff will be entitled to recover.” The question raised by this objection was thoroughly examined, and the authorities fully reviewed by this court in the case of the Nashville & Chattanooga Railroad Company v. J. M. Carroll, Adm'r, etc., decided at the recent term at Knoxville. Judge Freeman, delivering the opinion of the court, said:

“We concede the correctness of the general rule as established by all the English, and nearly all the American authorities, that a servant or employee, who is injured by the negligence or misconduct of his fellow-servant or employee, can maintain no action against the master for such injury. On this proposition there is and can be no difficulty. The question is, who are, in the proper sense of the term, fellow-servants or employees? In cases of employees of railroads, are all fellow-servants and employees who happen to be employed by the same master or company, to do work of any kind in any department of the varied employments of such corporations, whether they, by such contract, have any necessary connection, the one with the other, by virtue of such contract or not, to be included within the rule? This is the question on which there is diversity of opinion, and upon which we are to decide in this case.

We hold that on this point the rule requires, on sound principle, to be applied with proper limitations, based upon fair terms of the contract itself, and sound legal analogies. The rule, we hold, cannot be made to apply as between an employee in one department of the work of a railroad company, separate, distinct, and apart from the work of the other employee by whom he is injured, which has no immediate or necessary connection with the work in which the injured employee is engaged, further than being in employment on the same road and by the same company, where the injury is caused by the negligence or carelessness, or want of skill of such employee or agent of the company in the performance of the work of such company. This rule is supported by authorities of equal weight, though less in numbers than the contrary rule, and, in our judgment, by the greater weight of reason and sound principle.”

Mr. Redfield has been cited as the authority for the opposite rule, but in his work on Railways, vol. 1, 532, note to case of Nashville & Louisville Railroad v. Collins, it will be seen that the weight of his judgment is in favor of a modification of the rule. He says: “It is safe, therefore, to state, after a review of the authorities, that all the cases, both English and American, maintain the general rule to the extent of those who are strictly “fellow-servants” in the same department of service. And when this is not the fact, but the employees are so far removed from each other that the one is not bound to obey the directions of the other, so that the superior may be fairly regarded as representing the master; we think it more consonant with reason and justice to treat the matter as not coming within the principle of the rule.” In conclusion of this note he says. “But we would be content to treat all subordinates, who were under the control of a superior, as entitled to hold such superior as representing the master, and the master as responsible for his incompetency or misconduct. We should,” he adds, “regard this as the more salutary rule, upon the whole, than the present one.”

Judge Freeman said: “We cannot see that any other rule than the one here indicated can be fairly arrived at, unless we discard in favor of railroad corporations the general principle of respondeat superior, which has been so long and uniformly adopted in cases where the injury occurs by the act of the agent or servant in performance of the work of the superior, and an injury is done to a stranger.”

This case settles the rule and disposes of the objection to the charge, which was in accordance with the rule laid down by Judge Freeman.

4. It is insisted that there is error in the following instructions to the jury:

“The company was bound to see that the boiler of the engine on which the deceased was employed was perfect, and properly constructed, according to the present state of the art, and that the engineer and other employees with whom he was associated were men of ordinary skill and care, and was bound to provide and use all necessary means, appliances, and precautions to prevent accidents and render said employment safe; and if, in consequence of any omission, carelessness, or want of diligence in these regards, on the part of the company, an accident happened by which the said employee was injured, the defendant is liable to the plaintiff for the same.

Was the boiler in question such a one as the law now charged required? If not, then the company is responsible for any accident resulting from its defects; but upon this condition, however, that the defect was of such a character that it could have been discovered upon a critical and vigilant examination by a person of skill, either at the time of its construction or...