99 Tenn. 273 | Tenn. | 1897
The defendant in error, Bolton, was one of a number of section hands of the plaintiff in error, engaged at the time he received the injury for which he sues in this action in unloading some heavy piling timbers from one of the cars of plaintiff in error. Among the hands employed with Bolton doing this work was one Crocker, who also
The story of the injury, as told by the defendant in error, is, as follows: “I was standing in the car holding up the timber by a crossbar; Jim Butler was helping me. He was at the pther end of a piece of timber, and just as we threw the timber over the side of the car, Coley Crocker, who was rolling down' timber to us, rolled one down over on me, and it fell on my leg and foot,” etc.
The testimony of Crocker as to the accident is told in these words: “I was helping unload the car; I was not giving any orders. We had worked till we had gotten down to the floor; Lemmons, the boss, told us to unload the car, and he went down to the store to get a tapeline; Lemmons did not put me in charge of the hands; Lemmons was not gone but a few minutes. The accident occurred while he was gone. Bolton and the other hands were throw
After the Court had given his general instruction to the jury, the defendant below submitted the following special instruction, and asked that it be given, to wit: “If the proof shows that Crocker was the apprentice, and in charge of the section crew at the time of the accident, but was also doing the work of a section hand, and the injury resulted from the negligence of said Crocker while doing said work as a section hand, but did not result from any act of said Crocker as a superior, then, in that event, the plaintiff could not recover on account of said negligence; such would not be the negligence of a superior, but of a fellow servant.” The trial Judge declined to grant this request, and his action in this regard is assigned as error.
The fellow servant doctrine is well established in this State, the rule being that the duty of the master is discharged when he exercises care with the view of selecting competent and suitable servants, and that, among the risks which the employe assumes upon entering into the service, is that of injury arising from the negligence of those engaged with
So, conceding that the jury, on the facts of this case, could properly find that Crocker was put in charge of the hands during the short absence of Lem-mons, and that he was authorized to exercise all the functions of the latter’s office, and that his negligence was the wrongful cause of the injury, yet the question of law remains, upon the undisputed facts, that the act of negligence was one done by him as a laborer in a common work with Bolton. Would the master be liable for it % It is apparent that one may be the general representative of the master, so as to charge the latter for the results of all negligence occurring within the scope of his employment, and yet he may abandon his position of superior, with the authority attached to it, and become a fellow servant of those engaged in doing the work n hand and on a plane of perfect equality with them. In the one case the master would be responsible for his negligence, and in the other we think he would not be.
Mr. Burwell, in his work on the “Law of Per-' sonal Injuries,” p. 387, in discussing the doctrine of vice principal, says: “It is settled that a person
We think the distinction recognized in those cases is a sound one, and, as there were facts in the present record which warranted the hypothetical case put in the special request in question, it was the duty of the trial Judge to have given it in charge to the jury. For his error in failing to give it, the judgment is reversed and case remanded.