Salmon v. Southern Ry. Co.

• Decision Date: 19 November 1915
• Citation: 180 S.W. 165,133 Tenn. 223
• Parties: SALMON v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

180 S.W. 165

133 Tenn. 223

SALMON v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

November 19, 1915

Certiorari to Court of Civil Appeals.

Action by C. Alice Salmon against the Southern Railway Company. Judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff petitions for certiorari. Affirmed.

Green Webb & Tate, of Knoxville, for plaintiff.

L. D Smith, of Knoxville, and Roscoe Word, of Rockwood, for defendant.

NEIL C.J.

This action was brought to recover damages for an injury alleged to have been inflicted by the railway company upon plaintiff's husband, whereby the latter died. Originally there were three counts in the declaration, but only the first was relied upon.

This count alleges, in substance, that defendant railway company was engaged in interstate commerce, and while so engaged, and while her husband was employed in such interstate commerce as a servant of the defendant, he was injured through the negligence of his coemployés in the following manner: A car loaded with barrels of paint, or oil, was in course of unloading, the method being that the barrels were slided down a skid to the ground, two employés of the company being in the car and two on the ground, the business of the latter being to conduct the barrels safely to the ground, but by reason of their negligence the barrel turned and took the wrong direction, rolling rapidly to the ground and striking the deceased, by means of which act the injury was produced that plaintiff's husband was directing the said employés, and had given proper instructions, but these were not complied with; that such direction was a part of deceased's duty, and it was also a part of his duty to have charge of the iron house and distribute the iron to the various parts of the system at Knoxville, to be used in the repair of cars.

The railway company filed a plea of not guilty, and, at the close of plaintiff's evidence, moved for a peremptory instruction. This was given by the trial judge. On appeal to the Court of Civil Appeals that court affirmed the action of the trial judge, and the case is now before us under a petition for certiorari, and has been argued both orally and in writing.

It is insisted, in support of the motion for peremptory instructions, that there is no evidence that plaintiff's husband died because of the injury complained of; likewise, that there is no evidence of negligence on the part of the coemployés of the deceased. We deem it unnecessary in this opinion to go into the particulars of this matter, inasmuch as our views were stated orally in the presence of counsel on both sides when the cause was decided. The view entertained by the court, and so stated, was that there was enough evidence on these two subjects to take the case to the jury, in the event the court should be of the opinion that the facts brought it within the federal Employers' Liability Act. We are of the opinion, however, that the judgment of the Court of Civil Appeals must be affirmed on the ground that the facts did not make a case under that act. They are, in substance, as follows:

The Southern Railway Company is an interstate carrier, and maintains shops near Knoxville, Tenn., called the "Coster Shops." At these shops, among other things, it builds and repairs cars which it uses both in intrastate and interstate commerce, and which at times are in no service at all. It uses paint at these shops in painting cars, houses, and buildings, but practically all of the paint is used on cars. The paint which it uses is bought in large quantities, and usually comes to the freight depot of the company about two miles from the shops, where it is accumulated until there is a carload; then the barrels of paint are loaded into a car and hauled out to the shops, where the car is unloaded and the paint placed in a storehouse, and from this storehouse the supply is drawn upon when needed in connection with the painting of cars, or buildings, or whatever use it may be put to.

The evidence with respect to this particular barrel of paint does not show where it came from, or where it was to be placed, or what use it was to be put to. It is only inferable from the custom of the company with respect to paint generally that the particular barrel of paint which inflicted the injury would eventually be drawn upon for use in painting cars, buildings, etc.

Assuming that this particular barrel of paint, with the other barrels contained in the car, was handled in the usual and customary way, we may conclude that it was hauled from the depot at Knoxville out to the Coster Yards, where it was being unloaded, not for any particular use at that particular time, but for the purpose of being stored in the storehouse, from which subsequently a supply of paint necessary to be used in the shops would be drawn. There is no evidence from which it can be inferred that this particular barrel of paint was being devoted to any use at the time. We can only assume from the custom that the expectation was that it, at some future time, after it had gone into the storehouse, would be drawn upon for supplies. The connection of deceased with these transactions was to superintend the unloading of the paint from the car. He had nothing whatever to do with the using of the paint.

Among the general duties which the deceased had to perform was that of looking after the issuance of the iron from the iron racks in the iron house to the various shops in the yard; superintending the unloading of the iron; seeing that it was unloaded at the proper place, and placed properly in the racks, and issuing this iron, or pointing it out to the men working in the shops when it was called for. At the time the barrel of paint rolled down the skids and struck the deceased he had his back to the employés who were engaged in unloading the paint, was standing off some distance, looking at the pile of iron, and talking about it to some man whose name is not stated.

When this barrel of paint arrived at the yards, and had to be unloaded in order to be placed in the storehouse, the deceased called upon Mr. Reed, foreman of the scrap pile, to furnish him with four men to unload the car. Four negro laborers were furnished. They reported to deceased, who told them what to do and how to do it. Having done this, he turned his back in the manner stated, and was talking to the man about the iron, the latter being also, as stated, under his control and direction. It was the duty of the two employés who received the barrels from the hands of the other two in the car to conduct them safely to the ground along the surface of the skid. In order to do this it was necessary to seize the barrels firmly, but this particular barrel was, through the negligence of the two men on the ground, not firmly caught, and so escaped from their hands and ran down upon the deceased, striking him. An effort was made by one of the men on the car to save him, by calling to him, but the barrel went so rapidly, he did not have time to escape.

Two contentions are made by the railway company. The first is that at the time of the injury the deceased was not engaged in superintending the unloading of the paint from the car, nor in any act whatever connected with the distribution of the iron; that therefore, without reference to whether that work would constitute an act in interstate commerce, he was not at the time engaged in it, and for this reason cannot recover; secondly, that the work of unloading the paint in the manner in which this was being done, or superintending the iron pile, were not acts of interstate commerce.

We do not think the first contention is sound. He was close by, and had given directions which he had a right to suppose would be followed, and the fact that he turned away for a short time to talk with some one about the iron that was likewise under his charge we do not think would deprive him of his status of being engaged in an act of interstate commerce, if the work of unloading the paint was such an act. In our opinion the case, with respect to the first contention, falls within the authority of North Carolina R....