100 Tenn. 56 | Tenn. | 1897
The defendant in error recovered a verdict and judgment, in the Circuit Court of Cocke County, against the railroad company for the sum of $1,500, damages for personal injuries. The company appealed, and has assigned errors.
The defendant in error, at the time of the injury, was in the employment of the company in the capacity of brakeman, and sustained -the injuries at Swatzell’s switch by getting his arm caught between the deadwoods of two freight cars while in the act of coupling them.
The first count in the declaration alleges that the injuries were sustained in consequence of the failure of the company to provide safe and suitable dead-woods, drawheads and attachments, and coupling links and pins for two cars, between which the plaintiff’s arm was crushed, as aforesaid.
The third count alleges that the engineer employed by defendant wrongfully, negligently, and unskillfully propelled two freight cars together, and that thereby plaintiff’s arm was crushed, and he alleges that defendant company is liable because of its negligence in the selection of the said engineer; that he was reckless, negligent, and incompetent, and that this was known to the defendant, and that it wrongfully retained said engineer after his recklessness, negligence, and incompetency were discovered, and did not exercise proper care not to expose plaintiff to the risk of being associated with the .said engineer.
There was evidence tending to show that the draw-head of -the car from which plaintiff had taken the coupling link and pin was defective by reason of the fact that the iron bar, or stirrup, which is placed beneath the drawhead to hold it in position, bad become loose, thus permitting the drawhead to become displaced, and instead of striking the drawhead of the other car level, or face to face, it passed under it, breaking the link in two places, bending the pin, and crushing plaintiff’s arm.
There is evidence tending to show that the engineer ignored the stop signal given him by the defendant in error, and that instead of stopping the moving part of the train, in order that Wright might safely adjust the link in the Hinson self-coupler, the said engineer, suddenly and without warning, backed his engine so violently that when it struck the stationary section of the train the latter was ‘ kicked ’ ’ up grade for a distance of ten or fifteen feet. It is also shown that a short time before the accident the said engineer became offended at defendant in error, cursed and abused him.
There was also evidence tending to show that said engineer disliked switching, and that when it became necessary to cut out cars and set them on a siding he would fly into a passion; that at such times he became perfectly reckless and utterly indifferent to
The first assignment is that the Court erred in admitting evidence of specific acts of negligence, recklessness and misconduct of the- engineer, Lon Robinson, while in charge of his engine, without proof that said acts had been communicated to the coinpany before the injury to the plaintiff. There was evidence tending to show that these specific acts were known to at least four of the company’s conductors who had been associated with said engineer, and whose negligence and misconduct had come under their immediate observation.
Knowledge acquired by a conductor in charge of a train touching the recklessness or misconduct of the engineer is notice to the company, since the conductor is the. immediate superior of the en
In the present cause, knowledge of the. recklessness and misconduct of the engineer, acquired by conductors in charge of trains on other occasions, was notice to the company, and this is so despite the fact that a conductor has no authority to employ or discharge an engineer. ‘£ The general rule is firmly established that, if a master is wanting in
In Pittsburg, F. W. & Ch. R. Co. v. Ruby, 38 Ind., 294, the Court held that for the purpose of showing that the officers of a railroad company did not exercise due care, prudence, and caution in the employment of, or in retaining in service careful, prudent, and skillful persons to manage and operate its road, and for the purpose of charging such corporation with notice of the incompetency of its employes, specific acts of negligence or unskillfulness of such employes may be proved. In that case the conductor, through whose gross negligence, carelessness, and want of attention in leaving a switch unadjusted, and thereby causing a collision, and consequent injury to plaintiff, was proved to have carelessly and negligently, about a year before, left a switch open, by which a train was ^ thrown from the track; and a short time before the injury to plain
Says Mr. Wharton, in his work on Negligence, Section 238: “Such acts of negligence, on the part of such employe, are proper articles of evidence, it appearing that the acts were known-, or should have been known, to the employer or his agents in chief. But unless the master has notice, or ought to have taken notice, of the servant’s misconduct or deterioration, his retention is not imputable as negligence to the master.” Chapman v. Railroad, 55 N. Y., 579; Banlec v. Railroad, 59 Ib., 356; McKinney on Fellow-servants, Sec. 91.
The second assignment is that the Court erred in the following instruction to the jury, to wit: “If you find the engineer incompetent, then to warrant you in finding for the plaintiff on this ground, you must further find that the fact of his incompetency was brought home to the knowledge of defendant’s servants, who had the right to discharge the engineer, and by this, gentlemen, I instruct you that these would be the master mechanic, the superintendent, and conductor of its trains.” This instruction is erroneous, but it is not such error as calls for a reversal of the case at the instance of the