78 Tenn. 58 | Tenn. | 1882
delivered the opinion of the court.
This is an action under our statutes by Jennie Top-pins, the widow of Geo. W. Toppins, to recover of the Railroad Company damages for injuries causing her husband’s death.
The declaration avers, in substance, that said Toppins was an employee of the company, and that it was his
There is little or no conflict in the evidence except some apparent conflict in matters of opinion by witnesses who may be regarded as experts. Toppins had been in the defendant’s employ about eight years. He did boiler work and general repair about the engines as far as his ability extended. He was under the immediate charge of the master mechanic, Charlie Hodge, and subject to his orders. He was instructed by Hodge to examine all freight engines that should come in the yard between six in the evening and seven in the morning, to see if they needed netting in the smoke
On the occasion of the accident an engine known as “Mogul Engine No. 2,” had come in, and while it was on the turn-table being turned to be run or backed, into the round house, Toppins was standing upon a plank resting on the boiler and one of the hand railings running parallel therewith, which was somewhat lower than the boiler, with hands extended above him examining the smoke stack. While in this attitude the turn-table suddenly stopped, causing Top-pins to fall, and from j.the injuries thus received he died.
Thé proof makes it reasonably certain that the cause of the sudden stopping oí the turn-table was that the pilot of the engine extended outside of the table over the surrounding tracks, and while turning the weight of the front part of the engine caused it to “tilt” down, and the pilot or bolt on the under side struck some of stationary tracks causing the turn-table to stop.
As we have seen, the- fault charged upon the company in the declaration is, that the turn-table was defectively constructed and of inadequate strength, that it was suffered to be out of repair and was loaded beyond its capacity, and that the employees engaged in turning the table were unskilful .in their management.
It was proven that the turn-table was constructed
One of the plaintiff’s Avitnesses proves that it Avas the custom of Toppins to examine the engines at the coal pen, and sometimes he stayed on them Avhile on the turn-table. Another says he had seen him on the engine Avhile on the turn-table once or tAvice. , Ten minutes is proven to be ample time to turn an engine and put in the round house. There is nothing to shoAV that Hodge had any knoAvledge that Toppins Avas in the habit of standing upon the engines Avhile they were on the turn-table, and he says he gave no orders making this necessary.
The charge of the trial judge is, in the main, a correct statement of the general principles, but in some respects not applicable to any facts in proof, as for instance, his charge in regard to injuries resulting from the negligence of felloAV servants, Avhich he gives in full Avith all the qualifications .established by the decisions of this court, all of which was irrelevant as there
The case made in the proof rest alone upon the ground that the turn-table was not of sufficient size and capacity to allow an engine of the size of the “Mogul No. 2” to be so balanced upon it as to prevent the projecting pilot from sometimes striking the adjacent tracks and stopping the revolution of the table. The charge should have been confined to the case as presented in the proof. But in general it is no ground of reversal that the court has charged without abstract propositions not applicable to any facts in proof. Though this court may reverse upon this ground where they can see the jury have been confused or misled. Several objections have been taken to the charge and rulings of the court upon the evidence, but they are upon matters not vital to the determination of the case.
The strongest criticisms upon the charge is that it is so general — so wanting in direct application to the case presented — that it has resulted in causing the jury to wholly mistake its applications to the facts and render an erroneous verdict. As a genen 1 rule, to put a trial judge in error upon this ground, he should be requested to give more specific instructions, and the instructions requested and refused must he properly named and accurate. This - is the general rule, yet if
The criticism upon the charge in this respect in the present case, is a just one. It is not the province of the judge to impress any particular view of the facts_ upon the jury, but it is his province to make his charge so directly applicable to the facts as to enable the jury to render a correct verdict. To. leave as little room as possible for them to make mistakes in applying the law to the facts, which they may be very liable to do when they have only general abstract propositions given to them: in charge. There ought, if possible, to be no room for misunderstanding the charge on its application, and to this end it ought to be specific and direct.
The charge in this case as already indicated, is full upon the subject of defective machinery, and the necessity upon the company to furnish machinery in accordance with the existing state of the art or as well adapted to the use for which it was intended as the latest models, and all the general principles upon that subject. The jury should have been instructed, in view of the proof, that whatever may haye been the character or capacity of the turn-table, if it was sufficient to do the service required without danger to those servants who were- required to be present and engaged in or about it at the time, it was sufficient. The company would not be responsible for not having a better turn-table,® provided the defects of this one were
In this same Connection a controling question was whether or not Toppins was not himself responsible for the accident by voluntarily and unnecessarily placing himself in the position of danger, even supposing the turn-table to have been defective?
Upon this question the judge charged the correct general propositions taken from some opinions of this court, that is to say, if the negligence of Toppins Avas the proximate or efficient cause of the injury, or he was in equal fault, there could be no recovery, but if notwithstanding he was guilty of some negligence, yet if the negligence of the company was the proximate or efficient cause of the injury, the plaintiff could recover, and the contributory negligence would only go in mitigation of the damages. And further, if Toppins, by reasonable care on his part could have avoided the accident, there could be no recovery. Counsel for the defendant undertook to have more explicit instructions given, but their propositions were not accurately framed, and strictly, the court was not in error for refusing them. It would certainly, however, have been more appropriate, instead of leaving the jury to determine what was the proximate »and efficient cause of the injury and what the remo'te cause, to have said to them that if the turn-table was defective in the particular complained of, still if Toppins’ orders from his superior, or the nature or necessities of his employment, or some established and recognized custom of the company did not require him to stand on the engine in
Whether, however, we would reverse for the reasons given, if there was nothing else in the case, we need not say, but the charge- contains one positive error. That is to say, the jury were instructed that in addition to the damages which the deceased himself ought to have received if he had lived, damages might also be allowed for the deprivation resulting to the parties for whose use the suit is brought, that is, the widow and children.
This charge was justified by several expressions in the published opinions of this court,' but there has always been conflict of opinion upon the question, and we have more recently held the true rule to be that the action is the same in its character, and as to the elements of damages as if death had not resulted and the action had been brought by the injured party himself, and hence, damages to the widow, or next of
Let the judgment be reversed and the cause remanded for a new trial.