114 Tenn. 240 | Tenn. | 1904
delivered tbe opinion of tbe Court.
Tbis action was brought in tbe circuit court of Sumner county to recover damages for an injury inflicted upon tbe foot of tbe defendant in error in a collision that occurred in November, 1902, at Hendersonville, on tbe line of tbe plaintiff in error, between a freight train and a passenger train. There were verdict and judgment in tbe court below, and tbe railway company, after motion for a new trial bad been overruled, appealed and assigned errors.
Tbe defendant in error was a brakeman on tbe freight train. Tbe declaration contained counts on tbe negligence of tbe train dispatcher, tbe negligence of tbe conductor of tbe freight train, and tbe negligence of the conductor of tbe passenger train. To tbe last-mentioned count — tbe third — there was a demurrer filed, raising the question that the conductor on the passenger train stood in tbe relation of fellow servant to ttie train crew of tbe freight train, and hence to tbe defendant in error, tbe brakeman on that train, and therefore tbe company would not be liable to him for an injury caused by tbe negligence of such passenger conductor. Tbis demurrer was overruled by tbe circuit court judge, and bis action on tbis matter forms tbe subject of tbe first assignment of error, which we shall now proceed to consider.
In our latest case upon the subject (Railroad v. Edwards, 111 Tenn., 31, 76 S. W., 897) it is said:
“The mere superiority in dignity, grade, or compensation, in favor of one servant of a common principal over other servants is not a mark by which to distinguish whether or not the former is a vice principal. . .
The most general test is that, in order to be a vice principal, a servant must so far stand in the place of his master as to be charged in the particular matter with the performance of a duty towards the inferior, which, under the law, the master owes to such servant, as furnishing tools (Guthrie v. Railroad, 11 Lea, 372, 47 Am. Rep., 286), or machinery and appliances (Railroad v. Lahr, 86 Tenn., 335, 341, 6 S. W., 663), or giving orders with respect to work to be done by the subordinate (Railroad v. Sandman, 13 Lea, 423, 429).
“A test frequently stated in our cases is the authority to give orders, as a vice principal, to the subordinate servant, in directing him when, where, and how to work ....
“Some illustrations of the foregoing are seen in the following cases: Railroad v. Bowler, 9 Heisk., 866; Railroad v. Northington, 91 Tenn., 56, 17 S. W., 880, 16 L. R. A., 268; Railroad v. Lawson, 101 Tenn., 408, 409,
The conductor of the passenger train in question, however, had no power to give orders to the brakeman on the freight train. This ground for adjudging the relation of'vice principal and of servant thereunder did not, therefore, exist.
Was the conductor of the passenger train charged with any of the personal duties of the master towards the brakeman on the freight train? Was he charged with the duty of furnishing tools and appliances or a safe place to work? There is nothing to show that he was charged with such duties,
Was the passenger conductor in charge of, or engaged in, a separate department of the master's business?
“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 the 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 limitation. This rule has not been extended by us beyond railroad corporations, and. we are not disposed to extend it further than to the class of employments to which it has been heretofore limited.”
Under this doctrine it has been held that a track repairer ivas in a different department from, and hence not the fellow servant of, the crew of a train running upon the track (Haynes v. Railroad Co., 3 Cold., 222); for the same reason, that a section forman was not the fellow servant of the train crew (Railroad v. Carroll, 6 Heisk., 347, 361); that a watchman was not the fellow servant of an engineer (Railroad v. Robertson, 9 Heisk., 276); a telegraph operator at a way station, not the fellow servant of the conductor of a train (Railroad Co. v. De Armond, 86 Tenn., 73, 5 S. W., 600, 6 Am. St. Rep.,
We have no case holding that separate trains constitute separate and distinct departments of railway service, nor do we think they can be so treated on principle. The reason underlying the departmental doctrine resides in, as already stated, the need of consociation to enable coemployees to judge of the caution, diligence, and efficiency of each other, in order that they may properly protect themselves against negligence. In distinct departments of the service they are regarded as constantly working apart from each other, without the opportunity of mutual observation and criticism. This reason, however, cannot be held to apply to the crews of different trains running upon the tracks of the same company. It does not appear that such crews are permanently attached to any special trains. Moreover, even if not associated upon the same train, the crews of each train, in passing and repassing and in mingling with each other in the handling of traffic in the course of their work, necessarily have an opportunity of judging to some extent
If the conductor of the passenger train in question had no control over the brakeman on the freight train, or was not charged with any duty of the master towards him, as in the furnishing of tools and appliances or a safe place to work, or was not in a different department of the master’s service (and we have seen that he had no such powers and bore no such relation), which are the only exceptions our cases recognize as taking coem-ployees out of the class of fellow servants, then the said conductor and brakeman were fellow servants, and the master was not liable for the injuries inflicted upon one by the negligence of the other. This conclusion seems inevitable, on principle.
The weight of authority likewise supports this conclusion. Baltimore & O. R. Co. v. Andrews, 17 L. R. A., 191, 50 Fed., 728,1 C. C. A., 636; Kerlin v. Chicago, etc., R. Go., (O. 0.), 50 Fed., 186-188; St. Louis, etc., R. Go. v. Needham, 63 Fed., 107, 112, 11 C. C. A., 56, 25 L. R. A., 837; Northern Pac. R. Co. v. Mase, 63 Fed., 114, 11 C. C. A., 63; McMaster v. I. C. R. Co., 65 Miss., 264, 268, 4 South., 59, 7 Am. St. Rep., 654, 657; Pittsburg, Ft. W. & C. R. Co. v. Devinney, 17 Ohio St., 197. There are
In that case it appeared there was a rule of the company which provided: “That conductors of all trains, when approaching meeting points where they are to take the siding, must go to the forward part of trains and attend to the switch in person. On train leaving the siding they must set up switch for the main track in person. Conductors must not assign this duty to' any one, but must attend to it in person in every instance.”
In answer to the contention that it was the personal duty of the master to make and keep the way safe, the court, among other things, said:
“The line of demarkation between the absolute duty of the master and the duty of the servants is the line that separates the work of construction, preparation, and preservation from the work of operation. Is the act in question work required to construct, to prepare, to place in a safe location, or to keep in repair the machinery furnished by the employer? If so, it is his personal duty to exercise ordinary care to perform it. Is the act in question required to properly and safely operate the machinery furnished, or to prevent the safe place in which it was furnished from becoming dangerous through its negligent operation? If so, it is the duty of the servants to perform that act, and they, and not the master, assume the risk of negligence in its performance.
“The roadbed, ties, tracks, stations, rolling stock, and all the appurtenances of. a well-equipped railroad to
“In our opinion, the duty of opening and closing a swjtch in the ordinary operation of a railroad is not one of the personal duties of the master, but a duty of operation — -a duty of the servant — for negligence in the discharge of which another servant of the same master, engaged in operating a train over the same railroad, cannot recover.”
And it is well said by Brewer, J., in Howard v. Denver, etc., Ry. Co. (C. C.), 26 Fed., 837, 842 — a collision case:
To admit the qualification into the law of master and servant sought to be introduced in this case, making the conductor of one train the vice principal of employees upon another train, thereby declaring each train to constitute a separate department of the service, would practically break down the whole law of fellow servants as previously understood in this State. The law as it exists in this State is not unfair either to the master or the servant. While on the one hand, it seems, on a casual view, that it is a hardship upon the servant to deny him relief for an injury inflicted upon him by the negligence of a fellow servant in whose selection he had no voice, yet it seems equally hard to make the master liable to one of his servants for the negligence of another servant when he (the master) has exercised due care in selecting such servant. What more could he do? It is impossible that he should supervise and control every act of his servants. Yet if he is made liable to each of his servants for every act of all his servants in the course of the employment — and there may be and there often are thousands of them — the law then places upon him a duty which every one knows that no one can discharge. The true and just view is that expressed in our cases — that, after the master has exercised due care in the selection of his servants, the danger arising from the negligence
We are of opinion, therefore, that the circuit judge committed error in not sustaining the demurrer to the third count of the declaration, and the first assignment is sustained.
Other assignments of error are disposed of in a memorandum opinion filed with the record, and need not be further referred to here.
Reverse and remand.