Ward v. Louisville & N.R. Co.

• Decision Date: 23 January 1897
• Parties: WARD v. LOUISVILLE & N. R. CO.
• Court: Tennessee Supreme Court

38 S.W. 727

98 Tenn. 123

WARD v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

January 23, 1897

Appeal from circuit court, Maury county; E. D. Patterson, Judge.

Action by R. E. Ward against the Louisville & Nashville Railroad Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Voorhies & Fowler and James A. Smiser, for plaintiff.

Geo. T Hughes & Son, for defendant.

WILKES J.

This is an action for damages for personal injuries. There was a trial before the court and jury, and a verdict and judgment for plaintiff for $1,075 and costs, and defendant railroad company has appealed, and assigned errors.

Plaintiff was engaged by several parties at Mt. Pleasant to load potatoes in barrels from wagons into the cars which were placed upon the side tracks. It was necessary for the more convenient and expeditious loading of the potatoes to have the cars moved to another point on the side tracks, where the cars could be more readily reached by the wagons. At the request of Bibb brakeman on the train, plaintiff went on top of a car to assist in placing it at a convenient and proper place, and while he was so engaged the engine struck the car with force and violence, and plaintiff was thrown to the ground, and had his foot crushed by the cars running over it. It was customary to require shippers to load the cars upon the side tracks, and the railroad company and employés placed the cars at convenient places for that purpose. The main, and perhaps only, question in this case is admirably stated by opposing counsel, and plainly and very pointedly put to the jury in an admirable charge by the court. The contention of defendant railroad company is that the company had sufficient crew to place the cars properly, and would have done so, and there was no emergency or necessity for the plaintiff to aid in this work, and in so doing he was a mere volunteer, or acting under the unauthorized invitation of the brakeman, and became a fellow servant with him and the engineer, and hence he was not entitled to recover. The theory of plaintiff is that it was necessary to replace the cars in another position, and that he and his employers had an interest in having them so placed in order to expedite their own work; and hence he was not a fellow servant with company's employés, but was engaged in his employers' work, and was entitled to recover for the negligent acts of the company's servants. Upon this point the learned trial judge gave the following instructions: "The defendant insists that the plaintiff was a volunteer merely; that is, he was voluntarily assisting the brakeman whose own duty it was to do the work which plaintiff undertook to do. If this is so,-that is, if you find that the plaintiff was a mere volunteer, having no interest, either for himself or his employers, in the work which he was undertaking to do; that is, in assisting Brakeman Bibb in his work,-then he could not recover for the negligent acts of any of the agents and servants of the defendant company, unless their conduct was so grossly negligent as to show a wanton, willful, and reckless disregard of his safety. If the plaintiff was, as I have just said, simply assisting Bibb, the brakeman, in doing work which it was Bibb's duty to perform, then he cannot recover from the defendant for any injury caused by the negligence or misconduct of the engineer or other servants and agents of defendant. And if you so find you need not investigate the case further, but you will return a verdict for the defendant. But it is insisted in behalf of the plaintiff that he was not a mere volunteer, and that he did not stand in the relation of a fellow servant to the employés of defendant, but that he was assisting Bibb, the servant of the railroad company, at his request, for the purpose of expediting his own work which he was employed to do in relation to the loading of the cars with potatoes. How this fact was, you will determine from the proof. And it is a vital question, and one to be determined at the threshold of your investigation; that is, was this act of the plaintiff in going upon the car, at the invitation and request of the brakeman, Bibb, prompted by a desire to promote his own interest or that of his employers, and expecting thus to expedite and facilitate his own work, and promote the interest of his employers, or was he there simply to assist the servants of the defendant in their work, or as a matter of accommodation to Bibb? In the former case he would have the right to recover, provided the alleged negligence and injury is made out in other respects. In the latter case he could not recover. If you find from the proof that the plaintiff was engaged in the work of loading potatoes for the parties named in the declaration, and that it was to his interest, or that of his employers, in expediting his own work, that he should assist in moving the cars to where they were wanted, and that such self-interest prompted him to comply with the request of Bibb to help him about the car and that Bibb was the man in charge of that part of the work, and the man whose duty it was to do the work plaintiff was requested to do; and you further find that the action of the plaintiff was a reasonable and prudent act under the circumstances, and that while so engaged he was injured by the negligence of the agents and servants of the defendant company,-then, under such circumstances, the plaintiff would be entitled to recover."

Defendant relies upon the cases of Mayton v. Railroad Co., 63 Tex. 77, Sherman v. Railroad Co., 4 Adol. & E. 589; and Everhart v. Railroad Co., Id. 599, as holding the general rule that one...