90 Tenn. 711 | Tenn. | 1891
Mary Davis bas recovered a judgment against the Coal Creek Mining Company for
At a former term a recovery in her favor was reversed — Judge Turney delivering the opinion — • upon the ground that there Avas no evidence of negligence. Deceased met his death from suffocation, the result of smoke being carried into the mine where he was at work.
In support of appellee’s judgment, very full and earnest argument has been made. It is insisted that certain buildings outside, but at main entrance of mine, were negligently located and improperly constructed. This mine was worked by means of a horizontal entry on the side of the mountain. This entry was likewise the intake air-way. The ventilation of the mine was accomplished by means of a furnace placed at terminus of outtake air passage. Above this furnace was an open shaft, through which an up-blast of hot air was' continually passing out. The draught, thus produced caused a current of fresh air to flow into the mine through the entry, which there permeated all the passages and chambers; thence into the outtake air passage to the point where the furnace was located and out through the open shaft. This outtake air-way was to the left of entry of mine and parallel with it. At the terminus the furnace was located, and this air passage was connected with the entry by a side passage used by Evan Davis as furnaceman. This was- kept closed by
It is urged that these buildings were of wood, and that they should not have been located so near the entry. This mine had been frequently inspected by the State Inspector of Mines and by him passed as properly constructed. It is true that he does say, as is most apparent, that if they had been of non-combustible material the danger of fire would have been ■ avoided. But this would be equally true as to the timbers used inside the mine for supports. The burning of
It is next insisted that the burning of these-buildings was clue to the negligence of the engineer in control of the engine and engine-house.
This engineer is shown to have been a prudentr careful, and skillful man. He was well known to Davis. Their duties brought them much in contact. We have scanned this record in vain for satisfactory evidence of negligence upon the part of this man. But, if it be admitted that there-is evidence from which different minds -might draw-different results as to negligence of this engineer-in the management of his furnace fire, then we-reach the question as to whether appellant is, in, law, responsible for an injury resulting to deceased from negligence of the engineer.
Were the deceased and . this engineer fellow-servants ? When one engages in the employment
“In order to charge the master, the superior servant must so far stand in the place of the master as to he charged in the particular matter with the performance of a duty toward the inferior ■servant, which, under the law, the master owes to such servant.” Railroad v. Handman, 13 Lea, 425. In the subsequent case of Railroad v. Lahr, 86 Tenn., 341, it was suggested that this statement furnished a rule which, rightly ap
Where there is proof tending to show negligence of a superior servant, whereby an inferior servant has been injured, the jury should be instructed that the mere superiority of grade or rank will not determine the liability of the common employer, but that they must look and see whether the negligence was in regard to some duty to the inferior imposed by law upon the master, and by the master intrusted to the negligent superior servant. If this be so, then the rule of respondeat superior applies, for such a superior stands in the shoes of the master, and is a vice-principal.
In this case the evidence does not show that this engineer was the superior of the deceased, or that the master had intrusted the discharge of any duty to this engineer with respect to the deceased. They wei'e servants of a common master, and neither had any control over the other. This made them fellow-servants. Where there is no evidence tending to show injury by the negligence of a superior servant having control of the inferior, a trial Judge should not charge upon the effect of such negligence. He should content himself with the statement of the general rule, for a charge upon a limitation not involved tends to confusion, and leads to unjust verdicts in many cases. The charge in this case on the subject of fellow-servants covers twenty pages or more of the transcript. It is confused and contradictory. The
The trial Judge, subject to appeal, is the absolute judge of the law, and this high responsibility can neither be' divided with nor imposed on the jury-
It has been insisted that deceased and this engineer were in different and distinct departments of service, and that for this reason the fellow-servant rule does not apply. This different department limitation has been adopted in this State, and exists in the law of some two or three others. The weight of authority is against it, as admitted by Judge Freeman in the opinion adopting it as the law of this State in regard to railway corporations. Railroad v. Carroll, 6 Heis., 347.
The doctrine rests upon the theory that the vast extent of the business of railway companies has led to the division of their business into separate and distinct departments; that by reason of this division a servant in one branch or department has no sort of association or connection with one in another department; that this absence of association gives such servant no opportunity of observing the character of a servant in another department of labor, and no opportunity to guard against the negligence of such servant. The want of consociation is the idea underlying this limita
There was nothing in the facts of this case requiring a charge as to the duty of special diligence to guard against fire. The threats made by •a disappointed contractor had not been communicated to any officer of the corporation, and no special duty could therefore arise by reason of such threats. The deceased was himself charged with the general duty of keeping away unauthorized persons from the buildings adjacent to the entry, and his duties were such that he could well give the greater part of his time to this added duty.
It was not negligence to use a furnace inside the mine. The prohibition contained in the Act of 1881 is: “That in no case shall a furnace be used inside of the mine where the coal-breaker and chute buildings ai’e built directly over and covering the top of the shaft for the purpose of producing a hot up-cast of air.” There were no buildings over the shaft by which the hot air
There is no evidence to support this judgment. Eor this reason, and for the errors in the charge, the case must be reversed and remanded.