94 Tenn. 370 | Tenn. | 1895
Richard Porter brought this action against the Waters-Alien Foundry & Machine Company to recover $5,000 as damages for personal injuries claimed to have been received by him while engaged in its service. Verdict and judgment were rendered in favor of the defendant, and the plaintiff appealed in error.
On the question of improper association with unsuitable fellow-servants, the trial Judge charged the jury, among other things, as follows: “If you find from the evidence that plaintiff voluntarily went with defendant to the prison works, knowing he would be associated with convicts, or, after reaching there, found out he was to work with them, then he' would be held to have assumed the risks of such' employment, and cannot recover; or, if you find he'knew, or by reasonable diligence could have known, that his waiters were incompetent, and continued to work with them 'without complaint to the master, and a promise to supply a better one, then he assumed that risk, and cannot recover.”
This instruction, 'though embraced in a • single ' sentence, contains two separate and independent propositions, either of which, if established, would inevita
The duty of the master in this respect is affirmative and positive; and it is the same whether all of those employed be free laborers, or part of them be free and part convict, as in the present case. The same reasons for the rule exist in both
Reverse and remand for a new trial.