81 Tenn. 423 | Tenn. | 1884
Lead Opinion
delivered the opinion of the court.
Action by Handman, as administrator of Charles Handman, deceased, against the railroad company to' recover damages for the killing of plaintiff’s intestate. The' verdict and judgment were in favor of the plaintiff below. The company appealed in error, and a majority of the Eeferees have reported in favor of affirmance. The company excepted to the report.
Charles Handman, the plaintiff’s intestate, was in the employment of the railroad company as a fireman on one of its locomotive engines. He was instantly killed by the explosion of the boiler of the engine while standing upon the track of the road at Chattanooga, just before the starting of the train. The-gravamen of the action was the negligence of the company and its engineer in using an engine, the boiler
In- this State, we have adopted the general rule,, established by the authorities, regulating the relative rights of master and servant. The servant on entering into service knows, or is taken to know, that-there are extraordinary dangers inseparable from such service, which human care and foresight cannot always guard against. If he voluntarily engages to serve in view of all the hazards to which he will be exposed, it is well settled that as between himself and his employer, he undertakes to run all the ordinary risks of the service; and this includes the risk of injuries, not only from his own want of skill and care, but likewise the risk of injuries from the negligence of his-fellow-servants: Per McKinney, J., in Nashville & Chat
The leading case in our books is Fox v. Sandford, 4 Sneed, 36. The action in that case was brought by an employe against his employer and a co-employe to recover damages for an injury sustained in the work for which he was employed. The employers were contractors for • the erection of a house. The plaintiff was a hand hired to work thereon, and the •co-employe sued was also a hired hand “and foreman ■of the job.” The accident by which plaintiff sustained injury was occasioned by the foreman in paying out the guy-rope of a derrick, the employers not being present at the time, and having given no orders léading to the result. It was held that where two persons are acting in a common employment under the same principal, if one is injured by the negligence, unskillfulness or rashness of the other, the principal was not liable to the injured party in an action grounded alone upon such negligence in the employe. The principle thus ■enunciated was followed in Coggin v. Railroad Company, Thomp. Cases; 142, by sustaining a demurrer to a declaration which showed upon its face that the injury complained of was occasioned by the carelessness •of other servants in a common service. It was again followed, without citing the particular case, in the Nashville & Chattanooga Railroad Company v. Elliott, 1 Cold.,
Those cases 'not only settle the general principle which regulates the servant’s right of recovery' against the master, but directly meet the point which has been' suggested, that the principle doe's not apply where the injury results from the negligence oí a co servant who is the immediate superior of the injured servant. The-“foreman of the' job” in Fox v. Sandford, was • the-immediate superior of the plaintiff, a hand hired to work on ’ that job. The engineer of the locomotive in the case of the Nashville & Chattanooga Railroad Company v. Eliott was the immediate superior of the plaintiff, . a’ fireman or assistant fireman on the same engine. Tne mere fact that the negligent servant is,- in his grade of employment, superior to the servant injured does not take the case out of the rule. Nor does the mere fact that the negligent servant is the equal-or the inferior in grade "of the injured servant: Ragsdale v. Memphis & Charleston Railroad, Company, 3 Baxt., 426. They ai-e still fellow-servants in the common service, and each must Lake the- risk of the ne^li mnce of the other: 2 Thomp. on Neg., 1026, 1028, 1034. And it has been expressly held by other courts that an engineer and fireman, who work together at or cm the same engine,' are fellow-servants within the rule: Jones v. Yeager, 2 Dill., 64; Caldwell v. Brown, 53 Pa. St., 453. In order to charge the master, the superior servaut must so far stand in the
In the case before us, the engineer gave no order to the intestate, and exercised no authority over him which contributed to the injury. He did not stand in the place of the master, so far as the particular negligence in question was concerned, for the performance of any duty which, under the law, the master was bound to perform for the protection of the servant. He was simply negligent in complying with a rule of the company adopted for hiá guidance. It was
The only negligence referred to in that part of the charge of the trial judge which we have discussed is the personal negligence of the engineer in failing to come to his engine sooner. The negligence óf the company, if any, in relation to supposed defects in the engine, because of the knowledge of the engineer of those defects, has not been considered. The objection to the charge on the latter point is not so much to what it contains, as to its failure to state in the same connection the effect of the knowledge of the plaintiff's intestate of the same defects. In ordinary cases, the jury should be told that to authorize a recovery these two things must concur. Knowledge on the part of the master or its equivalent negligent ignorance, and a want of knowledge on the part of the servant or its equivalent excusable ignorance. If the knowledge or the ignorance of the master and servant in respect to the character of the machine are equal, so that' both are either without fault or in equal fault, the servant cannot recover: 2 Thomp. Neg., 995, 1009; East Tennessee, Virginia & Georgia Railroad Company v. Hodges, 2 Leg. Rep., 6; Nashville, Chattanooga & St. Louis Railway v. Wheless, 10 Lea, 741.
The report of the, Referees will be set aside, the judgment below reversed, and the cause remanded for a new trial.
Dissenting Opinion
delivered the following dissenting opinion :■
I dissent because there is, in my judgment, no evidence tending to show that the explosion was caused by the failure of the engineer to be at the engine thirty minutes before the time of starting, and conceding the correctness of the legal proposition discussed in the opinion of the majority, it was in this case a mere abstraction which could not injure the- defendant: 3 Head, 331; 3 Sneed, 434; 8 Yer., 249; 4 Baxt., 364; 1 Lea, 300.
As to the objection to the charge suggested in relation to the knowledge of defects on part of the engineer, etc., the charge was correct as far as it went, and there was no request for .any furfher or more specific instruction as to the effect of the knowledge of such defects on part .of fhe deceased: 2 Hum., 516; 2 Cold., 348.