Ohio River & C. Ry. Co. v. Edwards

• Decision Date: 26 September 1903
• Parties: OHIO RIVER & C. RY. CO. v. EDWARDS.
• Court: Tennessee Supreme Court

76 S.W. 897

111 Tenn. 31

OHIO RIVER & C. RY. CO. v. EDWARDS.

Supreme Court of Tennessee.

September 26, 1903

Appeal from Circuit Court, Washington County; C.J. St. John, Judge.

Action by Wilson Edwards against the Ohio River & Charleston Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Kirkpatrick Williams & Bowman, for appellant.

Burrow Bros. and Isaac Harr, for appellee.

NEIL J.

This action was brought in the law court at Johnson City by Edwards to recover damages for injuries alleged to have been inflicted upon him by the negligence of the railway company. He recovered judgment for $4,000, and the company has appealed and assigned errors.

Objections were taken below to the declaration, and it was amended, and this was objected to; and after these points were disposed of the testimony of the defendant in error was offered, and thereupon a demurrer to the evidence was interposed by the plaintiff in error. This demurrer was overruled, and the cause went to the jury, with the result above stated.

The evidence discloses the following state of facts:

The plaintiff, Edwards, was in the employ of the company primarily as a track walker, but the duties of this position did not require all of his time; and it was his further duty after he had finished his work as track walk er during the day, to join the section force and perform such duties as pertained to any member of that force. The section force to which he belonged had for its boss one Grant. On the afternoon on which the accident occurred, the aforesaid section boss directed Bryant, who was the subforeman or subboss, to take three men and proceed about a half mile up the track, and bring down a lever car and some tools he would find there. This order was given in the presence of Edwards and other members of the section force. Edwards, Reedy, and Tittle, all members of the section force, proceeded with Bryant to the place designated by the section boss, for the purpose of bringing down the car and tools just referred to. Just before they arrived at the place where the lever car stood, they saw a dump car coming down the track in charge of one Hensley, an employé of a lumber company that had a plant on the side of the railway company's road. Bryant signaled Hensley to stop, and he did so. Bryant thereupon said to Hensley, in effect, that he desired to put the lever car on the track in front of the dump car. This was accordingly done. Hensley then proposed that he should ride upon the lever car and assist in the working of the lever and that Reedy should draw the dump car with a cant hook that he (Hensley) had, which was a part of his outfit as a lumberman. This arrangement was agreed to, or, rather, no objection was made to it, and Reedy and Hensley thereupon disposed themselves in the manner directed. When they started, the five men were engaged as follows: Edwards and Hensley sat with their backs to the dump car, and their faces fronting down the track. Bryant and Tittle sat with their faces towards the dump car, and with their backs in the direction the lever car was to go. These four men were so arranged in their places for the purpose of working the lever. Reedy sat apart, with his face to the dump car, and the cant hook attached to a rod in the front of that car. While the parties were in this position the two cars were started; the lever car being propelled by its lever in charge of the four men, as above indicated, and the dump car being drawn by the cant hook in the hands of Reedy. After they had proceeded a considerable distance, and had gotten near the place where the dump car was to stop, Bryant put his foot upon the brake with a view to stopping the cars; but on looking up he saw that, in some manner unexplained in the testimony, the cant hook had become detached from the dump car, and it was coming down towards the lever car uncontrolled, and only about eight feet distant. With a view to preventing a collision, Bryant took his foot from the brake so as to allow the lever car to proceed more rapidly but he was too late, and the dump car struck against and bumped the lever car. At this time Edwards was standing upon the lever car, with his back to the dump car. The shock given by the stroke of the dump car to the lever car knocked Edwards backward upon the track, and the dump car ran over him and injured him badly.

The dump car was constructed as all other cars of that kind on the road in question, and did not have, as a part of its make-up, a brake. It was customary in using that car to supply the place of a brake by putting a piece of wood between the wheels and the boxing; but this car had no boxing around the wheel, and it would have been impossible to use a piece of wood in the manner stated if there had been any one upon the dump car to use it, but there was no one upon that car to control it in any way.

The dump car was about three times heavier than the lever car, and it was down grade at a considerable inclination from the point where they started to the place where the accident occurred.

The dump car belonged to the railroad company, but at the time was in use by the above-mentioned lumber company for the purpose of transporting logs to its mill, and, as above stated, was in charge of the lumber company's agent, Hensley, at the time it was halted by Bryant, in the manner above indicated, when the lever car was put upon the track.

Edwards was an experienced man in the section work, and had previously been one of a number of men who had conveyed the dump car down the track with the lever car, but on that occasion he was behind the dump car, not in front of it. The reason the dump car on the present occasion was placed behind the lever car was that the dump car had to be stopped at a point short of the camp of the section force. If the lever car had been put behind the dump car, it would have been necessary, when arriving at the place of stoppage for the dump car, to take the lever car from the track and transport it around to the front of the dump car. To avoid this additional labor, the lever car was at the outset placed in front of the dump car.

Edwards knew that the dump car, even when properly constructed, had no brake upon it. He did not know, however, that the boxing around the wheel was absent, and that the dump car was so far defective. He did know, however, that it was behind the lever car; that no one was upon it to guide it or control it; that the only contrivance for controlling it was the use of the cant hook in the manner above indicated; that it was at his back as he sat down to the lever; that it was three times the weight of the lever car; and that they were going down grade.

The duties of the subforeman were "to work as any other section hand while the foreman was present, and in the absence of the foreman to keep the men at work the same as the foreman did."

The cause of action stated in the declaration, as first drawn, was that the defendant had been guilty of negligence "in causing him [plaintiff] to be placed on a lever car with his back towards a moving flat car, an unsafe and dangerous place, the dangers of which were unknown to plaintiff, but were known, or could have been known, to defendants, by the exercise of ordinary care and caution of their part." This was the first count. The second count placed the action on the ground that "plaintiff and other section hands, under the supervision of a section boss, were moving a flat car along the track by means of a lever car, when and where, by reason of the fact that said flat car was equipped with a dangerous, defective, and unsafe brake, which was insufficient to stop the car, and by reason of which said flat car ran against said lever car, and plaintiff was knocked off, run over, and injured as aforesaid; and plaintiff avers that said defective and unsafe brake was unknown to him, but was known, or could have been known, to defendants, by the exercise of ordinary care and caution on their part."

Defendant demurred to the first count on the ground that the declaration showed that plaintiff's injuries arose from risks incident to the service. The second count was demurred to on the same ground. The circuit judge sustained the demurrer to the first count, but overruled the demurrer to the second.

Thereupon the plaintiff amended the first count so as to read as follows:

"Plaintiff avers that his injuries as aforesaid were caused by the wrongful, negligent, and careless acts of defendant in this case; that plaintiff was engaged and employed as a section hand, and his ordinary and common duty as such employé required him to work upon and aid in keeping defendant's track in repair, when on the date and at the place aforesaid plaintiff was taken from his usual work, and was by order of his common superior sent to aid in putting a lever car on the track, and with it to aid in putting a flat car on defendant's said track, a work with which he was totally unfamiliar, and which was outside of the general scope of his employment, and, by reason of said negligent, careless, and wrongful order of said superior, plaintiff was placed on said lever car with his back to the flat car which was being propelled, a dangerous and unsafe place to work, the dangers of which were unknown to plaintiff, but were known, or should have been known, to defendant; and, while plaintiff was in the exercise of due care and caution on his part, said flat car ran suddenly and unexpectedly into and upon said lever car, and plaintiff was thrown therefrom, run over, and injured as aforesaid."

Defendant demurred to the declaration as amended on three grounds First, because it did not aver that the plaintiff was the servant of the company; second, because the injuries...