102 Tenn. 16 | Tenn. | 1899
This is an action for damages for the negligent killing of John Loomis, an employe
The recovery is insisted upon on the ground that the engineer was incompetent to operate the engine and run the machinery; that he started the engine • at full speed without giving timely warning, and without receiving a signal from the deceased that he might safely increase the speed; and that the signaling appliances were defective and out of order.
While there are a great number of errors assigned, the defense generally stated is that the deceased was guilty of contributory negligence in wearing an overcoat, which made the work about- the
Much discussion is had in the case upon the subject of superior and fellow-servants. Plaintiff insists that Fain, the engineer in charge of the machinery, was the superior of Loomis, and that the latter was so far under his control as to be an inferior servant, with Fain not only as his superior but occupying the relation of vice principal as to him. We are of opinion the Court did not fully charge the law applicable to the facts of ' this case upon this subject of superior, inferior; and fellow-servants.
There is evidence to show that Fain was foreman, and as such had control and supervision over Loomis; that he employed and discharged the hands generally, and usually directed them in their work, and there is evidence that Loomis was directed by Fain to do the particular work in which he was engaged when he was injured. But there is evidence also showing that Fain was filling several positions at the same time — that is, he was shipping clerk, foreman, and engineer. The law is well settled that an employe may occupy the place of the principal as to some duties, and as to others be simply a fellow-
It is evident that Fain, in this case, if negligent at all, was negligent in operating the engine and in either failing to give or to wait for the proper signals prescribed by the rules of the company. Now, in the running of the engine he was not in any way the superior, but was' the fellow-servant, of Loomis. According to plaintiff’s theory, that Fain was to start up the engine only upon notice from Loomis, it is evident that he was under the direction, as to that matter, of Loomis, and Loomis was not under his direction. Upon defend
In the case of Boyce v. Fitzpatrick, 80 Ind., 526, it appeared that the plaintiff was injured while employed under t,he direction of the superintendent and manager, who was, at the same time, in charge of the machinery in the defendant’s factory, through the negligence of the superintendent, and it was held that he was the fellow-servant of the employe, and not a superior or vice principal. See, also, Bailey’s Personal Injuries, Secs. 1963, 2064.
We are of opinion that, the facts being stated, the question of whether a person is' a fellow-servant or a superior is one of law for the Court, and that, upon the facts as contended for by the plaintiff in this case, Fain, in running the engine, was the fellow-servant of Loomis while the latter was engaged in adjusting the machinery or belts, and the Court should have so charged, and then rested the case before the jury upon the other contentions made by the plaintiff; that Fain, though a fellow-servant, was wholly incompetent, and known to be so for the work and place of an engineer, and that the appliances for signaling were defective. How far this error was instrumental in causing the verdict as rendered we cannot tell. There being error
Plaintiff does not, however, rest his right to re cover upon the fact that Pain was the superior and Loomis an inferior under him, but he insists that the whistle appliance through the building, for giving-notice by the engineer or to him, was not in proper condition, but was defective. Under the facts as developed by this record, it was clearly the duty of Fain, as foreman, to see that this appliance for giving notice was in proper condition and not defective, and as to this feature of the case he was the superior and vice principal of Loomis, although he was his fellow-servant in the work of running the engine. Upon this branch of the case there is no definite reliable evidence that the whistling appliance was defective, and none whatever that Fain knew of any defect in it or had any ground to suspect any.
It appears that if there was any defect in the appliance, it was not in its being defective in construction, but the most that a witness (not remarkable for intelligence) could say was that he supposes some water must have, been left in it over night, which prevented its sounding promptly. It does not appear that Loomis attempted to sound the whistle and was unable to do so, and the witness, James Carter, states that when he pulled the cord the first time, if the whistle sounded he did not hear it;
But plaintiff insists that if this. all be true, still the defendant is liable because Fain was totally incompetent to run the engine in such manner as to insure the safety of the employes about the building.
Much is said about Fain’s not observing the rules as to signals in starting the machinery. But this is important alone upon the question as to whether or not he was a competent engineer. If he was a skilled and competent engineer, the fact that he failed to observe the rules would be only evidence of his individual negligence in the discharge of his duty as a fellow-servant for which the principal would not be liable. If Fain was incompetent to operate the
These things, however, must concur: general incompetency of the engineer, knowledge by the company of such incompetency and want of such knowledge by Loomis, and some specific act of negligence on Fain’s part which proximately caused the injury and death. No matter if he was incompetent and it was known to the company, still if .there was no act of negligence which proximately caused this particular injur}', the company cannot be held liable therefor. There is evidence that Fain was a young-man who had left school and had entered into the service of the company first as shipping clerk, then as foreman, and then as engineer, and he was probably filling all these places when the. injury occurred. There is no imputation against his general Intelligence, but only against his experience as an engineer. Upon this feature of the case it does not appear that it requires any great amount of intelligence or skill to operate an engine as he was required to do. It does appear that the young man had been running the engine for some nine months. When he was first put in charge of it, it is shown that he was not entirely familiar with it, and some evidence of his want of information appears in the record, but this all related to a period of service
It appears that the deceased had been a longtime in the employ of the company and was thoroughly familiar with all its departments and the details of the work, and must have well known the capacity of Fain as engineer. On this particular occasion it was his duty, or he was directed to place the belts upon these different pulleys which were to operate different parts of the machinery. These pulleys were all upon the same shaft and only a few feet apart". The belts could only be put on while the machinery was in motion, and it was important that the motion should be slow, as rapid motion would tend to catch the person or his clothing and draw him on to the moving machinery. It was a matter which required caution and care to be safely done.
No one saw how the accident occurred. When first discovered, soon after the engine was started, the deceased was fastened to the shaft by his clothing, which was fairly wrapped around it, and he was being rapidly revolved with the shaft around and around, his body closely pinioned to it by his
There is evidence to support both theories; but grant that the one advanced by the. plaintiff is correct, and that Fain should not have started the engine until he received a signal from Loomis, and that he should have waited for the signal and failed to do .so, this would at least be but the negligent act of a fellow-servant and if that fellow-servant were not shown to be incompetent generally there would be1 no ground of recovery. It^is impossible, from the record, to determine how the accident occurred. It is evident that the deceased had on his overcoat on the morning of the accident and had been previously warned not to wear it about the machinery. There is evidence that after this warning he had cut off the tail, or a part of it, and
It is incumbent on the plaintiff to show that the accident was caused by some negligent act of the defendant, which proximately caused it, and that this negligence was not the act of a competent fellow-servant, but of the master or some one in his place, or an incompetent servant. We are not satisfied, from the record, that this has been shown, and it may be that the jury were misled into the belief that Fain, while acting as engineer, was the superior of Loomis and gave undue weight to the fact, and held the company responsible for his negligence, if there was any. For these reasons we are constrained to reverse' the judgment and remand the cause for another trial. »The appellee will pay cost of appeal.