Robertson & Hobbs v. Cayard

• Decision Date: 05 December 1903
• Court: Tennessee Supreme Court
• Parties: ROBERTSON & HOBBS v. CAYARD.

Page 1056

77 S.W. 1056

ROBERTSON & HOBBS v. CAYARD.

Supreme Court of Tennessee.

December 5, 1903.

Appeal from Circuit Court, Cocke County; G. McHenderson, Judge.

Action by E. C. Cayard against Robertson & Hobbs for personal injuries. Judgment for plaintiff, and defendants appeal. Affirmed.

G. W. Pickle and Wiley Jones, for appellants. R. E. L. Mountcastle and G. W. Gorrell, for appellee.

McALISTER, J.

Plaintiff below recovered a verdict and judgment against Robertson & Hobbs in the sum of $5,000 as damages for personal injuries which resulted in his death.

The suit was brought by E. C. Cayard in his lifetime, and after his death it was prosecuted under the statute for the benefit of his widow and child.

The facts disclosed in the record are that the defendants, Robertson & Hobbs, were contractors, and at the time of the accident were engaged by the Southern Railway Company in changing the grade of its track east of Newport. E. C. Cayard was employed by said contractors in the capacity of a locomotive engineer, whereby it became and was his duty to operate an engine with an attached train of cars in hauling dirt between the steam shovel and the fill, a distance of something more than a mile. The track over which the train was being run was on a steep grade for a few hundred yards from the shovel to the top of the hill, and then down a heavy grade to the temporary trestle where the fill was being made. The plaintiff was a member of the night crew, and the accident occurred in the nighttime.

It is alleged that in September, 1900, Cayard undertook to run said engine with a train of cars from the steam shovel to the fill, and that in consequence of said defect in the engine and the insufficient equipment of brakes and brakemen he was unable to control the speed of the train, and, the same becoming unmanageable, the engine ran out upon said trestle, which broke through, thereby precipitating the engine and cars to the ground below, and inflicting the injuries which resulted in plaintiff's death.

The gravamen of the action is that the said Cayard was furnished by defendants with a defective engine — that is to say, one with a steam jam out of repair; and that the cars were not provided with sufficient brakes, nor with a sufficient complement of brakemen. The alleged defect in the engine is more specifically described in the amended declaration, which avers that said engine "had a weak, defective, and patched-up steam jam, with weak, worn, rusted, and defective screws and taps, which were not strong enough to stand a sufficient pressure of steam to hold or control said engine and cars."

It is further alleged in said amended declaration that said cars were old, rickety, defective, and unfit for use, and were entirely without brakes, excepting two out of thirteen, or about that number, constituting the train at the time of the injury.

It is then alleged that said trestle was not of sufficient strength to support the weight of said engine, being constructed of wood, with small, shaky, rickety poles for its support, and small, weak timbers throughout, improperly and insufficiently placed, braced, and supported.

There is ample evidence in the record to show that the engine was defective in the particulars alleged in the declaration, and it is reasonably certain that, but for these defects, the accident would not have happened.

It is also shown in the proof that the cars were not provided with sufficient brakes and brakemen, especially in view of the defective condition of the engine — a fact which was known to the foreman of Robertson & Hobbs. The foreman, one Layman, was in charge of the night shift, and the other employés were subject to his orders and control. The trains were made up under his direction and supervision.

The red line cars, which were heavier, were never used before on the night shift. The proof shows that there were 13 cars in this particular train, and that only 2 of them had upright brakes, and it is shown that the side brakes with which they were provided were not intended for use in controlling the train. It is further shown that there was only one brakeman of this train.

It is probable from this proof that, if the cars had been properly provided with brakes and brakemen, the accident would have been avoided, notwithstanding the defects in the engine.

The trestle was 30 feet high, and was built at the foot of a steep incline. It was very defectively constructed, and wholly insufficient to sustain the weight of the engine. However, it was not expected that the engine would be drawn upon this trestle, and it was contrary to orders to do so. The rule was for the cars to be backed upon the trestle, and their contents dumped therefrom. It is insisted that Cayard was guilty of such contributory negligence that he is not entitled to a recovery. It is said that he knew of the defects in the engine, and that he knew of the insufficiency in equipment of the cars with brakes and brakemen, and that he was apprised of the weakness of the temporary trestle.

It may be stated as a conclusive answer to the last suggestion that, as a matter of fact, the engineer did not voluntarily take his engine upon this trestle, but that it became unmanageable on account of the defects described, and went upon the trestle, despite his efforts to prevent it.

On the night of the accident, Cayard was put in charge of engine 52 on the night shift for the first time. Prior to this time he had been running a different engine on the night shift, with better equipment and brakes. When he mounted his engine on the night of the accident he was informed by the engineer who had been operating that engine during the day, and also by Layman, the foreman, that the steam jam or brake did not work perfectly, but they both assured him that the train could be controlled by the brake in its then condition, and that it was safe to operate it. It appears that Layman, the foreman, had used this engine in drawing the train up from the water tank just before it was placed in charge of Cayard, and that he, with Cayard, examined it, assuring the latter, as he left the engine, that it was all right, and that it could be operated safely. It was known to Layman at the time that the train was one of unusual weight, and that it was not supplied with the usual equipment of brakes. It is not insisted that Cayard knew of the insufficient equipment of the cars with brakes and brakemen. It is only contended that he should have known. It appears that Layman, the night foreman, although accustomed to attend the engine on these trips, for some reason not appearing, left the train before it started down the grade.

It is well settled that the question of contributory negligence is a matter for the settlement of the jury, and their verdict in this case has settled that issue in favor of the plaintiff. Moreover, we find ample evidence to support the verdict of the jury, and the assignment of error to the contrary is overruled.

It is next assigned as error that the court struck out the plea of champerty...