102 Tenn. 1 | Tenn. | 1899
This is an action for damages for personal injuries. There was a trial before a jury in the Court below, and a verdict and judgment for the defendant, and plaintiff has appealed and assigned errors.
The plaintiff was a machine helper in the defendant’s employ, and was injured while removing the head from a cylinder on the left side of engine No.
The ■ plaintiff’s theory is that he was ordered to do this work by his superior; that an inexperienced and incompetent helper was furnished
The assign'ments are wholly to the charge of the Court. It is said the Court stated defendant’s theory of the case, but failed and declined to state that of plaintiff. This, we think, is only partially correct. The Court stated plaintiff’s theory, and, so far as he went, stated it correctly, but declined to charge that part of the case made by plaintiff which set up the sudden emergency feature because it was not alleged in the declaration. The declaration does not make any statement as to there being a sudden ■emergency which necessitated hasty work, though there is some evidence bearing on this question. As we understand plaintiff’s position on this feature, it is that it was only necessary for him to allege negligence; that if the defendant insisted that the assistant’s incompetency was known to the plaintiff, that would be matter of defense to which plaintiff might reply that the work was done under an emergency which did not give him the opportunity and right to object to the assistant, and it was not necessary, in the first instance, to allege there was an emergency. We think, in the first place, that the in competency of Rollins is • not shown in this case. The work he was required to do was not that of an expert, but was simple. The taking off of the head was not a work of difficulty, and could be, and often was, done by a single person, and the
It is next said it was error not to charge that the mere fact that plaintiff remained in the service of defendant and did the work with knowledge of the incompetency of this fellow-servant will not necessarily and as a matter of law exonerate the defendant from liability. The Court deemed this sufficiently charged. It was important to the plaintiff
It is said the Court erred in selecting various isolated pieces of evidence and making the case turn upon them and in this manner invading the province of the jury.
The first specific objection under this head is in substance that if Rollins placed the plank by plaintiff’s direction in an unsafe manner which directly caused or contributed to the accident, there then could be no recovery. This did not assume the facts to be as stated, but put a hypothetical case to the jury, and was warranted by the evidence. Again, it is objected that the Court said to the jury that if plaintiff was warned by the foreman to move his foot or it might be crushed, and that he disregarded the warning and could have escaped by heeding it, he could not recover. We think there is no error in this. There is evidence that such warning was given. It is not claimed it was acted upon. It is said that he might not have been able to move his foot or might not have understood the order, but these criticisms are not supported by the record.
The assignments in regard to .the stud not being in place and the use of the monkey wrench are not well taken. We do not understand the charge to
It is said it was error to charge that if plaintiff’s knowledge of the competency or incompetency of Rollins was equal to that of. defendant, there could be no recovery if he asked for or accepted his assistance without protest or objection. This, we think, is good law. If a servant know that he is working with defective tools or unsafe appliances, or. with incompetent fellow-servants and have the same knowledge as the employer, and he make no objection, but continue to work, he is not entitled to recover because of injuries arising out of such defects or incompetency. Wood’s Master and Servant, Secs. 419, 422; Bailey’s Master and Servant, Sec. 422.
Upon the whole case we do not find evidence of the incompetency of Rollins, and if in fact he was incompetent, it was as well known to the plaintiff as to the defendant company, and he was accepted by plaintiff as his helper without objection. There is evidence strongly tending to show that plaintiff adopted a dangerous plan of taking off j.the cylinder head; that he placed his foot in ¡[danger and was warned to move it by the foreman, and that he
We are therefore of opinion the judgment is correct, and it is affirmed with costs.