Powell v. Virginia Const. Co.

• Decision Date: 29 April 1890
• Citation: 13 S.W. 691,88 Tenn. 692
• Parties: POWELL v. VIRGINIA CONST. CO.
• Court: Tennessee Supreme Court

13 S.W. 691

88 Tenn. 692

POWELL v. VIRGINIA CONST. CO.

Supreme Court of Tennessee.

April 29, 1890

Appeal from circuit court, Shelby county; L. H. ESTES, Judge.

Action by John W. Powell against the Virginia Construction Company. Defendant obtained judgment. Plaintiff appeals.

M. B Frizevant, for appellant.

J. H Watson, for appellee.

LURTON J.

The defendant is a corporation engaged in the business of doing railway construction under contract. It had a contract for the construction of the Tennessee Midland road from Memphis to Jackson. It sublet a portion of the tracklaying to a firm of contractors known in the record as Meridith & Horton. The plaintiff, while the general servant of defendant, and while acting as a brakeman, was injured in making a coupling, and sustained the loss of an arm. The negligence alleged was that of Meridith, one of the subcontractors; and the case turns upon the question of the liability of defendants for his negligence. The contract between Meridith & Horton and defendant was in the following words and figures:

"Virginia Construction Company. Articles of agreement (signed in triplicate) made and concluded this 15th day of November, 1887, by and between J. P. Meridith and J. R Horton, under the firm name of Meridith & Horton, parties of the first part, and the Virginia Construction Company, party of the second part: Witnesseth, that the party of the first part does hereby agree to lay the track of the Tennessee Midland Railway Company east from a connection with the M. & C. R. R. tracks at or near McGhee's Junction as far as the chief engineer of the party of the second part may determine and order, for the sum of four hundred and seventy-five dollars ($475.00) per mile, including all handling and rehandling of materials, to-wit:

For unloading rails, ties, and fastenings on arrival per mile .......... $15 00

Reloading and unloading same during progress of work .................... 60 00

Distribution of ties ................................................... 125 00

Laying and surfacing track ............................................. 275 00

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Total,--laying and surfacing per mile, complete, including all

handling of materials of every kind ................................. $475 00

--It is understood that the party of the second part will furnish push-cars, locomotive, flats, and engineer, fireman, and one brakeman; that there shall be two thousand eight hundred and sixteen (2,816) ties to the mile, full spiked; that the fish-plates shall have four (4) bolts to the joint, carefully adjusted; and that the track shall be surfaced with the best material found contiguous to the roadbed, but material for surfacing is not to be taken from the embankments, but procured outside of the slopes; and, where necessary, said material shall be hauled. In crossing the river bottoms, or at other places where surfacing material is difficult to get, such extra allowances may be made as the chief engineer deems equitable. The parties of the first part hereby agree to put in the cattle-guards upon that part of the road where the track is laid by them as per plan furnished, including excavation of pit and all materials for guard and fencing, for $45.00 each. The lumber used in cattle-guards to be of heart white oak, heart past oak, or heart yellow pine, free from all defects calculated to impair strength; the whole to be done, in a thorough and workman-like manner, to the satisfaction of the chief engineer of the party of the second part. Approved as being in accordance with proposal of party of the first part. R. H. TEMPLE, Chief Engineer. MERIDITH & HORTON. Witness the following signatures: Witness: T. T. TALLEY, C. L. POWERS, JR. VIRGINIA CONSTRUCTION COMPANY. By ------, V. P. & G. M. Attest: R. L. TRAYLOR, Asst. Secty."

No question is made as to the competency of the several members of the crews of the train for the posts to which they were assigned by defendants, in whose general service they were. The negligence alleged is that Mr. Meridith temporarily displaced the engineer on one of the construction engines, and ordered his fireman to act as engineer, while plaintiff, a brakeman on same train, did some necessary coupling. By the negligent and unskillful conduct of this acting engineer, in the management of the engine while making this coupling, plaintiffs arm was crushed. It is charged that the unfitness of this fireman to manage an engine was known to Meridith, and unknown to plaintiff. Plaintiff's suit was originally against both the Tennessee Midland road and the Virginia Construction Company. There have been two trials of the cause. The first resulted in a verdict and judgment in favor of plaintiff, but against the construction company alone. This verdict as against defendant was set aside, and new trial granted. Upon the second trial, there was verdict and judgment for defendant. Both records are before us, but no error is assigned upon the failure of the circuit judge to set aside the verdict in the first trial in favor of the railway company.

Was Meridith the agent or servant of the Virginia Construction Company in the management of this construction train? If he was, defendant is responsible for his negligence. If however, he was not the agent or servant of defendant, but an independent contractor with reference to the work he had contracted to do, and in the management and control of this train, and the defendant had no right to control his conduct in the particular matter complained of, then plaintiff's remedy would be against Meridith & Horton, the subcontractors, and not against defendant. An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to control of his employer, except as to the result of his work. The employer of such a contractor, if he be a fit and proper person, and the work be not in itself unlawful or a nuisance in itself, or necessarily attended with danger to others, will not be responsible for his negligence, or that of his subcontractors or his servants. Mr. Thompson, in his work upon Negligence, says that "in every case, the decisive question is, had the defendant the right to control, in the given particular, the conduct of the person doing the wrong?" 2 Thomp. Neg. 909. The fact that the general contractor sublets a part of the work embraced in his own contract, and stipulates, as in the contract under consideration, "that the work is to be done, in a thorough and workman-like manner, to the satisfaction of its chief engineer," will not be such an assumption of a right to control, as to the details or methods of doing the work, as will make him responsible for wrongs of such subcontractors or his servants. Such a provision is nothing more than is usual and necessary in order to enable the employer to see that the work contracted for is carried out, and...