Southern Ry. Co. v. Hensley

• Decision Date: 25 October 1917
• Parties: SOUTHERN RY. CO. v. HENSLEY.
• Court: Tennessee Supreme Court

198 S.W. 252

138 Tenn. 408

SOUTHERN RY. CO. v. HENSLEY.

Supreme Court of Tennessee.

October 25, 1917

Certiorari to Court of Civil Appeals.

Action by Thomas Hensley against the Southern Railway. To review judgment of the Court of Civil Appeals reversing judgment for plaintiff and dismissing the complaint, plaintiff brings certiorari. Affirmed.

NEIL C.J.

Plaintiff in error was sued by the defendant in error in the circuit court of Knox county, for an injury alleged to have been tortiously inflicted upon him, in the course of some work he was doing for the latter. The facts were these:

The defendant in error was an employé of the plaintiff in error in its Coster yards at Knoxville, along with a large number of other persons. The laborers worked in pairs; defendant in error and one Foust were companions. They were engaged in dismantling cars. In the performance of this duty they were required to cut iron rods to enable them to separate the car into its constituent parts. They used two tools, a cleaver and a sledge hammer. The cleaver had a sharp edge or surface on one end, and on the other it had a hammer head. Into the center of the tool was thrust its handle. In the performance of the work in hand it was required that one of the companions should hold the sharp edge of the cleaver on the rod while the other struck the hammer head of this tool with the sledge hammer. In this way the rods were severed. The handle of the cleaver was not wedged tightly in the eye. It did not need to be tightly wedged when used simply in the manner just described. Moreover, wedging the handle tightly into the eye of the cleaver bred inconvenience for the laborer whose business it was to sharpen it, because it could not be sharpened without taking it off the handle. It required to be sharpened frequently. So it was that very few of the cleavers had tightly fitted handles. However, although it was not necessary to use the cleaver as a hammer, still plaintiff in error's laborers did frequently so use it in the progress of the work, after the cutting was done, in knocking the pieces of metal apart; and this was practiced under the eye of the vice principal, Reed, and he raised no objection. Defendant in error's companion, Foust, at the time the injury occurred, was so using the cleaver. He was trying to knock two pieces of metal apart, with the result that the cleaver flew off of its handle, and, after striking a log, rebounded and struck the defendant in error on his foot, seriously injuring him. The defendant in error and Foust held the cleaver and used the sledge hammer interchangeably; that is, sometimes defendant in error would hold the cleaver and Foust would strike, and vice versa. So both had an opportunity of examining the cleaver and ascertaining that the handle was not wedged on. These tools were not selected by the laborers, but at night were all turned in to the company, and the next day were issued to the various laborers, with the result that no laborer would necessarily get the same tools the next day. The tools that were used by Foust and defendant in error were issued, on the day in question, to Foust, and afterwards used by them alternatively in the manner stated. Foust says, in his testimony:

"It was not customary for the handles to be wedged in the cleavers. They furnished them to us without being wedged on; I know that. All you had to do to tell that the handles were not wedged on was to look at them. Mr. Hensley would sometimes do the driving and I would hold the cleaver, and I would sometimes do the driving and he would hold the cleaver. At the time Mr. Hensley got hurt, he didn't do all the kinds of work I did; he was just learning, you know. I don't remember just how long he had been there. He had not been there long, though. There wasn't anything complicated about any of the tools we worked with there; they were just simple tools; tools we would use every day in work of that kind."

This witness further says, speaking of Hensley:

"He was to work with me. He was called my 'buddie.' I was to show him what

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