Prince v. Nashville, C. & St. L. Ry.
| Court | Supreme Court of Tennessee |
| Writing for the Court | Hall |
| Citation | 274 S.W. 13 |
| Decision Date | 25 June 1925 |
| Parties | PRINCE v. NASHVILLE, C. & ST. L. RY. |
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?
Page 14
"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 time?
"A. Yes, sir.
"Q. Now, they used that track there at that place, didn't they, Mr. Prince, to run trains from other states — through trains, came out of Illinois and Kentucky, and were used there for the purpose of running those trains on into Alabama, Georgia, and Atlanta, isn't it?
"A. I suppose so."
Harvey Windsor, a witness offered in petitioner's behalf, testified as follows:
"Q. What was done with the gravel when it arrived first?
"A. It was got off the train first — unloaded with the shovels.
"Q. Unloaded where — on the side of the track or not?
"A. Yes, sir; on the side of the track.
"Q. Then, after it was unloaded, what was done with it?
"A. Put on the track; throwed on the track with the shovels.
"Q. Was it put on the track directly from the car, or was it thrown on the ground and then transferred to the track?
"A. It was unloaded onto the ground, and then transferred into the track."
On cross-examination this witness testified as follows:
"Q. On the morning of this injury you were, as I understand, cleaning off the side of the dump over the bed?
"A. Yes, sir.
"Q. That is, above the dump on the level with the end of the cross-ties there?
"A. Yes, sir.
"Q. And that was being done for the purpose of unloading that train of gravel?
"A. Yes, sir.
"Q. And the gravel was being put there for the immediate use on the bed?
"A. Yes, sir.
"Q. That was the regular and customary way of handling that gravel, wasn't it?
"A. Yes, sir.
"Q. And Mr. Prince knew that fact?
"A. Yes, sir."
Bill French, another witness testifying in petitioner's behalf, testified as follows:
"Q. In cleaning off that dump there it was also in addition to dumping that gravel there, to drain the tract?
"A. Yes, sir.
"Q. And that was necessary?
"A. Yes, sir.
"Q. This is the same line of railroad that runs from Atlanta., Georgia, through the state of Georgia, Alabama, and Tennessee and on to Hickman, Kentucky?
"A. Yes, sir.
"Q. There were trains from Georgia that passed over that tract in a few minutes after the occurrence, wasn't there?
"A. The gravel train?
"Q. Wasn't there some through trains from Florida that came there?
"A. I don't know where they came from.
"Q. They do do that?
"A. Yes, sir; they do that."
It is uncontroverted that the track on which petitioner was working at the time he was injured was an interstate track, over which several interstate trains passed daily.
In "scalping" the top of the dump petitioner used a shovel, which struck some small object on the side of the bank, causing it to fly up and strike him in the...
To continue reading
Request your trial
-
Harris v. Mo. Pac. Railroad Co., No. 35032.
...a part of it. Myres v. Chicago, B. & Q. Railroad Co., 246 S.W. 264, 296 Mo. 239; Prince v. Nashville, C. & St. L. Ry. Co., 274 S.W. 13, 152 Tenn. 189; Quirk v. Erie Ry. Co., 139 N.E. 556, 235 N.Y. 405; Freeman v. Frasher, 268 Pac. 538, 84 Col. 67; Louisville & N. Ry. Co. v. Blan......
-
Tennessee Cent. Ry Co. v. Pyle
...closely related to it as to be practically a part of it?" In Prince v. Nashville, Chattanooga & St. Louis Railway, 152 Tenn. 189, 274 S.W. 13, the principle was applied that maintenance of a railroad right of way, used by both interstate and intrastate trains, is so much a part of ......
-
State v. Durso
...that a fine may not be lawfully fixed for a violation of these liquor laws by the judge without a jury verdict." 152 Tenn. at 188, 274 S.W. at 13. In Upchurch v. State, 153 Tenn. 198, 281 S.W. 462 (1926), there was an unclear record respecting a jury trial, but the verdict as recorded ......
-
Harris v. Mo. Pac. Railroad Co., No. 35032.
...a part of it. Myres v. Chicago, B. & Q. Railroad Co., 246 S.W. 264, 296 Mo. 239; Prince v. Nashville, C. & St. L. Ry. Co., 274 S.W. 13, 152 Tenn. 189; Quirk v. Erie Ry. Co., 139 N.E. 556, 235 N.Y. 405; Freeman v. Frasher, 268 Pac. 538, 84 Col. 67; Louisville & N. Ry. Co. v. Blan......
-
Tennessee Cent. Ry Co. v. Pyle
...closely related to it as to be practically a part of it?" In Prince v. Nashville, Chattanooga & St. Louis Railway, 152 Tenn. 189, 274 S.W. 13, the principle was applied that maintenance of a railroad right of way, used by both interstate and intrastate trains, is so much a part of ......
-
State v. Durso
...that a fine may not be lawfully fixed for a violation of these liquor laws by the judge without a jury verdict." 152 Tenn. at 188, 274 S.W. at 13. In Upchurch v. State, 153 Tenn. 198, 281 S.W. 462 (1926), there was an unclear record respecting a jury trial, but the verdict as recorded ......