Washburn v. Nashville & Chattanooga R.R. Co.

• Decision Date: 31 December 1859
• Court: Tennessee Supreme Court
• Parties: WASHBURN v. THE NASHVILLE & CHATTANOOGA RAILROAD COMPANY.

40 Tenn. 638

WASHBURN

v.THE NASHVILLE & CHATTANOOGA RAILROAD COMPANY.

Supreme Court of Tennessee.

December Term, 1859.

FROM DAVIDSON

Verdict for the defendant, Baxter, J., presiding. The plaintiff appealed.

Foster and McEwen, for the plaintiff; Ewing and Reid, for the defendant.

MCKINNEY, J., delivered the opinion of the court.

The plaintiff brought this action against the company to recover damages for an injury to his person, occasioned by a collision between two trains, on the defendant's road. Under the instructions of the court, the jury found against the plaintiff.

It appears that abount the 8th of December, 1857, a bridge on the road, and perhaps a hundred yards of the track, were swept off by a flood, so that the trains were hindered from passing between Nashville and Chattanooga for some days otherwise than by keeping a train on each side of the breach in the road, and changing the passengers and baggage from one train to the other.

On the morning of the 14th of December, before the breach had been repaired, the superintendent of the road directed Chilcutt, an engineer in the employ of the company, to leave Nashville with his train at the hour of 5 o'clock a. m., the schedule time of departure being 2:30 p. m. The superintendent informed the engineer that he would find a train in readiness on the other side of the breach in the road, and directed him to transfer his passengers and baggage to that train, and to go through to Chattanooga, stating that there would be no train from the latter place to Nashville that day. The agent of the company at Chattanooga, in ignorance of the order of the superintendent, started a train from the latter place on the same morning, and on a curve in the road, the trains came in collision, whereby the plaintiff received a serious injury.

The telegraph wires were broken, so that no communication could be made in that way. The respective conductors of the trains being entirely ignorant of the orders given at the opposite ends of the road, and neither having the least expectation of meeting a train, omitted the usual precautions to prevent a collision, when running out of time. The proof shows that the train from Chattanooga was running on schedule time, but the other train was not.

It appears that the plaintiff was an engineer in the employ of the company. His train was lying idle at Chattanooga, on account of the breach in the road, and on the day preceding the collision, he got upon another train to go to Nashville, on a private errand of his own, without permission, it would seem, from the proper agent of the company.

Chilcutt states that on his way to Chattanooga, on the day of the collision, the plaintiff got upon his train at Decherd's Station, a point between Nashville and the break in the road, and took his seat in the baggage car, the place where those who “ride free” should sit, and where he was sitting when the collision took place.

The proof shows that the superintendent had the entire management and control of the “rolling stock” of the road; that he always sent out and received the trains; and also had the control and management of the conductors, engineers, brakemen, and all other employees of the road, all of whom were bound to obey his orders, “according to the rules of the road.”

The court instructed the jury, in substance, that the superintendent of the road and the plaintiff were both servants of the company, and that for an injury to the plaintiff, by the negligence or misconduct of the superintendent, he could maintain no action against the company, if there were no fault or negligence on the part of the latter. That it made no difference that the one servant was higher in authority than the other, or that they belonged to different departments of the service. Nor did it make any difference that the plaintiff was not actually employed in the service of the company on the day the injury was received, unless he had abandoned the service of the company with the view of dissolving the relation of servant. The court further stated, in effect, that the board of directors of the company, was to be regarded as the principal, and that an employee of the board, though styled president, or superintendent, could not be so considered.

These instructions in reference to the facts of the case,...