Prince v. Nashville, C. & St. L. Ry.
| Decision Date | 25 June 1925 |
| Parties | PRINCE v. NASHVILLE, C. & ST. L. RY. |
| Court | Tennessee Supreme Court |
v.
NASHVILLE, C. & ST. L. RY.
Appeal from Chancery Court, Carroll County; Thos. C. Rye, Chancellor.
Proceeding by S. J. Prince, claimant, for compensation under the Workmen's Compensation Act, against the Nashville, Chattanooga & St. Louis Railway. From an award of compensation, defendant appeals. Reversed, and suit dismissed.
Maddox & Maddox, of Huntingdon, for complainant.
John T. Peler, of Huntingdon, for defendant.
HALL, J.
The petitioner, S. J. Prince, filed his petition in the chancery court of Carroll county, against the Nashville, Chattanooga & St. Louis Railway, seeking compensation under the workmen's compensation statute (chapter 123, Acts of 1919), for an injury sustained by him in January, 1922, while in the employ of defendant, and which injury arose out of and in the course of his employment.
Defendant answered the petition, setting up the following defenses:
(1) That defendant was an interstate railway operating between the states of Kentucky, Alabama, and into the state of Georgia, to the city of Atlanta, and that at the time petitioner sustained his injury both defendant and petitioner were engaged in interstate commerce, and therefore the workmen's compensation statute was inapplicable to said injury.
(2) That notice was not given defendant of said accident and injury, as required by the provisions of the workmen's compensation statute.
The cause was heard before the chancellor on oral testimony. He held that petitioner was entitled to the relief sought in his bill; that he was earning $13.44 per week at the time of his injury, and was entitled, under the workmen's compensation statute, to recover $6.72 per week; said sum being one-half of his weekly wage for a period not to exceed 100 weeks, and that the payments should begin on the 11th day of October, 1924, the day after the injury occurred; and the judgment also taxed defendant with the costs of the cause.
From this judgment defendant appealed to this court, after its motion for a new trial had been overruled, and it has assigned errors.
Petitioner was injured while working for defendant as a section hand on October 10, 1924. At the time of receiving the injury complained of, petitioner, with other section hands, was working on section No. 14 of defendant's track in Carroll county, Tenn., and was engaged in "scalping" the bank or dump preparatory to unloading a trainload of gravel intended for immediate use in ballasting defendant's track. On this point petitioner testified as follows:
"Q. You had been working on the section over here, you say, for a year?
"A. Yes, sir.
"Q. You had done some similar work before that day to what you were doing at the time you were injured?
"A. Yes, sir.
"Q. And they were improving the tract there, were they not?
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"A. Yes, sir.
"Q. And, in order to improve the track, they had to unload gravel along there?
"A. Yes, sir.
"Q. They had unloaded gravel in the same way before that time?
"A. Yes, sir.
"Q. And that gravel had been put on the dump on the side of the roadbed, and then worked right under the track right there?
"A. Yes, sir.
"Q. And that is what they were doing at the time you got injured?
"A. Yes, sir.
"Q. You were looking for the train of gravel at the time you were injured?
"A. Yes, sir.
"Q. And it came in an hour, didn't it?
"A. Yes, sir.
"Q. And they stopped there and unloaded the gravel right along there where you were injured, wasn't it?
"A. Yes, sir.
"Q. And that gravel, part of it, was put under the track that day, wasn't it?
"A. I don't recollect; I went home and went to the doctor's office.
"Q. You went right back up there?
"A. Yes, sir; but they hadn't got it unloaded when I came on back. The train was still there.
"Q. When they were unloading the gravel from the train, a part of it fell into the track, didn't it?
"A. Yes, sir; some of it.
"Q. And all of that gravel that was unloaded there was used right along at the place where it was unloaded?
"A. Well; I suppose so — I don't know whether it was or not.
"Q. It was being placed there for immediate use at that point, and that is the way they had been handling it all the...
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