Tennessee Coal, Iron & Railroad v. Jarrett

Mr. Justice McAlister delivered the opinion of the Court. This is a suit for personal injuries. The trial below resulted in a verdict in favor of the plaintiff for $6,000. The trial judge, being of opinion that the verdict was excessive, suggested a remittitur of $2,500, which was accepted by the plaintiff, and thereupon a judgment was pronounced in his favor for $3,500. The defendant appealed, and has assigned errors. — 568 — The first assignment is that there is no evidence to support the verdict. It is insisted that upon the undisputed facts in the record, plaintiff, as a matter of law, is not entitled to a judgment. The gravamen of the action as laid in the declaration is that the defendant company is engaged in the manufacture of iron, owning and operating an iron plant at South Pittsburg, in Marion county, Tenn., comprising furnaces, stock-houses, railroad tracks, etc., and that the plaintiff was employed in said plant in the capacity of a hand, and was a member of what was known as the “floating gang/* The duties, of the floating gang were to pick out castings, lift up castings, clean up the place, move the brick, move the iron, and similar duties, requiring no mechanical skill or experience. It is alleged that the plaintiff was changed from this employment to the more hazardous work of replacing columns in the stockhouse, which had become displaced. Plaintiff alleges that the accomplishment of this work, properly and safely, required knowledge, skill, and experience, and especially some familiarity with a mechanical instrument known as a “jack.” Plaintiff further alleges that he had no experience whatever in mechanical work, and had never worked with the carpenter’s gang until a few days before the injury. On that date, to wit, a few days before the injury, the boss of the floating gang directed the plaintiff to report to P. R. Jones, who was the boss of the carpenter’s gang, and go to work with him. It is further alleged that both the boss of the floating gang and the boss of the carpen — 569 — ter’s gang well knew that plaintiff was not a mechanic, and had no experience whatever in that kind of work. It is alleged that the defendant company gave the plaintiff no warning advice and instructions as to how this work should he done, and that, on account of the negligence of the company’s agent in executing the work, and the plaintiff’s ignorance and inexperience as a workman, he sustained the injuries. A more specific statement of the case is that at the defendant’s plant was a stockhouse, over which ran elevated railroad tracks. The tracks were supported by upright columns about twenty feet high. Two of these columns had slipped out of their sockets, and leaned toward each other. On the day of the accident the boss of the carpenter’s gang ordered the gang, including the plaintiff, to put said columns back in position. Accordingly, a double scaffold, with two floors, about sixteen feet high, was erected under this elevated railway track. A piece of oak timber eight by eight inches and twelve or thirteen feet long, called an “arrow,” was placed horizontally against one of the leaning columns. The space between the two columns was sixteen feet, and the intervening space between the end of the oak timber and the other leaning column was filled with a mechanical jack twenty-five or thirty inches long. A piece of iron was then employed as a lever, and the jackscrew was turned for the purpose of forcing the piece of timber and jack against the columns, and thus press them back in their proper places; but the pressure against the end of the — 570 — timber was so great that it caused the jack and timber to buckle with such force and violence as to knock the plaintiff, Jarrett, off the scaffold, down on the iron ore, inflicting upon him very serious personal injuries. The plaintiff bases his right to recover upon two grounds: First, that the defendant company, in directing him to co-operate in this hazardous service, failed to give him warning advice and instructions; second, that the mode adopted by the foreman for accomplishing this work was dangerous, and not the usual and customary method. The record shows that Jones, the boss of the carpenter’s gang, was present superintending the work of replacing said columns, and directing how it ■should be done. It is insisted that neither the timber nor the jack were in any way supported or confined to their places, but were left entirely loose. There is proof tending to show that the proper and safe way to do this work required that the jack should be placed on the floor, the piece of timber on the jack, and the other end ■of the timber against the elevated railroad track, and that by the mechanical pressure or force of the jack, the railroad track should have been lifted, so as to allow the ■columns to be slipped back into their proper places, and' the track then let down again. It is insisted that by this method the pressure on the columns would have been entirely relieved, and the process of adjusting the columns in their proper places comparatively simple. Proof was introduced by the plaintiff tending to establish this theory, and also to show that plaintiff was in — 571 — experienced, and had no instructions from defendant’s boss in respect of the proper manner to do the work. It is shown that, the plan used for readjusting the columns I was adopted by Jones, the boss of the carpenter’s gang, and that plaintiff was simply complying with the directions of his superior when the accident happened. It is further shown that the plaintiff had no admonition as to the danger incident to this work, nor advice.how to avoid it. The declaration alleges that the method employed for accomplishing the work was a dangerous and unusual method; that said Jones, the boss of the carpenter gang, knew this danger, and that the plaintiff did not know it, but, relying upon the superior knowledge ■of the foreman, plaintiff undertook to do the work in this way in obedience to orders so given, and by reason of the negligence of defendant in adopting this dangerous method the jack and timber gave way, inflicting the injury. On behalf of the defendant company it is insisted that the master has the right to exercise his judgment in choosing methods of doing his work, and is not responsible in damages in selecting one less safe or more hazardous than another that might have been adopted. It is further insisted that plaintiff Jarrett was a matured man, and a man of intelligence; that he had had eleven years’ experience in working around the furnace; that he was capable of knowing, and did know, all the dangers likely to result from the work. As a matter of law, it was insisted on behalf of defendant company, first, — 572 — that this injury resulted from an ordinary peril incident to the service which the plaintiff assumed when he entered on the employment; and, second, if any negligence be shown, it was that of a fellow servant, for which the company is not responsibla The insistence made on behalf of the company is that the boss of the floating gang and the boss of the carpenter’s gang were fellow servants of the defendant in error, W. C. Jarrett; that the injury was caused by the negligence of these fellow servants; and no liability, therefore, attached to the master. The court fully and correctly charged the law on both of these propositions. But the plaintiff below predicated his right to recover upon the following proposition, viz.: “Where a master commands a servant to go outside of his regular employment to do work which is attended with special danger, and the servant does the work at the time and in the way directed, the fact that the servant knew that the work was dangerous does not exonerate the master, or make the servant guilty of contributory negligence, unless the character of the danger be so patent and glaring that no prudent man would attempt it. The servant does not assume the risk incident to the new service, but the implied obligation of the master is that he indemnifies the servant against the danger incident thereto. If the servant so transferred from one service to another is ignorant and inexperienced as to the work to be performed, or the danger incident thereto, the master is liable for the injury that — 573 — may result therefrom, unless he properly instructs and warns the servant with reference thereto.” 2 Bailey’s Personal Injuries, 3475, 3479-3481, 3483, 3484, and authorities cited. In Shearman & Redfield on Negligence (5 Ed.), section 219a, it is said, viz.: “The principles governing the management of minors are, to a large degree, also applicable to the employment of inexperienced, ignorant, feeble, or incompetent servants. A master having notice of any such defect in a servant, no matter what his age may be, he is bound to use ordinary care to instruct the inexperienced, unskilled, or ignorant; avoid putting the feeble to work too heavy for their strength; and generally to refrain from exposing them to risks which they are not fit to encounter. When the master has notice of such ignorance, unskillfulness, or ignorance on the part of the servant as would make the ordinary risks of the business especially perilous to that servant, he must give the servant explicit warning of the danger, and not allow him to undertake work without a full explanation of its perils.” Brennan v. Gordon, 118 N. Y., 494, 23 N. E., 810, 8 L. R. A., 818, 16 Am. St. Rep., 775. In the last case the court says: “This action is brought upon the theory that the plaintiff, being inexperienced in the running of an elevator, and that to the knowledge of the defendant, and that having been assigned by the defendant to perform this — 574 — duty, tbe defendant was bound to qualify bim for sucb service.” It appears that in that case tbe porter in tbe store bad' been transferred to tbe position of operating tbe elevar tor. See, also, Campbell v. Eveleth, 83 Me., 53, 21 Atl., 784; Leary v. Boston & Albany R. R., 139 Mass., 584, 2 N. E., 115, 52 Am. Rep., 733. This question was considered very fully in an opinion by Judge Lurton in Felton v. Girardy, 104 Fed., 127, 43 C. C. A., 439. Tbe facts of that case, as stated in the syllabus, are as follows: “Plaintiff’s intestate was employed as a boiler maker’s-belper in the repair shops of defendant railroad company. During a holiday, when most of tbe other employees were absent, be was directed by tbe foreman of tbe shops to go into tbe fire box of a locomotive engine,, which bad steam up, and tighten tbe plug in a leaking flue of a boiler. The plug was a screw plug, and in attempting to drive it with a hammer he broke the threads,, so that tbe plug was forced out by tbe pressure, and be was scalded to death by the escaping steam and water. It was shown that two kinds of plugs were used in locomotive flues, one being screAved' into tbe flue and the other driven; but it did not appear that- deceased knew sucb fact, and there is evidence tending to sboAv that the repairing of sucb plugs was tbe work of an experienced, boiler maker, who could have told which kind the one to be repaired was, and that it should have been tightened — 575 — with a wrench. There is also testimony that the deceased objected to doing the work while the boiler was hot, saying he did not know how to do it, or what to do, hnt he was ordered back without instructions.” Said Judge Lurton: “A servant impliedly assumes the risks and hazards incident to the service he contracts to render, and, in the absence of knowledge to the contrary, an employe!" may assume, as between the master and servant, that, one applying for a particular employment possesses the skill and judgment requisite to the safe and proper performance of his duty; but if the employment be one of a dangerous character, requiring skill and caution for its proper discharge with safety to the servant, and the master be aware of the dangers, and have reason to know, that the servant is unaware of them, and that, from his youthfulness, feebleness, incapacity, or inexperience, he does not appreciate them, the servant cannot, even with his own consent, be exposed to such dangers unless he be cautioned and instructed sufficiently to enable him to comprehend them, and, with proper care on his part, to do his work safelyciting many authorities. “The rule is not materially different in principle when a servant is directed to do a temporary work outside of the work which he has engaged to do. If there is nothing peculiarly dangerous in the new work, and the master has no reasonable ground for believing that the servant is unaware of the dangers he will encounter, or has not the requisite skill and experience to do the work with safety — 576 — to himself, the servant may well be regarded, if he obeys, with having assumed the usual and ordinary risks incident to the employment” — citing authorities. “But when a servant is ordered by one having authority over him to do a temporary work beyond the work which he had engaged to do, and the superior knows, or ought to know from all the circumstances of the case, that the work which the subordinate is directed to do is of a peculiarly dangerous character, and is aware, or under all the circumstances should be aware, that the risks and hazards of the work, or the proper mode of doing the work to avoid the incident risks, are. not obvious or known and appreciated by the subordinate, by reason of his youth, incapacity, or inexperience, it is the duty of the superior to caution and .instruct such disqualified servant to enable him to understand the dangers he will •encounter, and how to do the work with safety, if he exercises due care himself;” citing authorities. “The principle is that, if the employer knows the servant will be exposed to risks and dangers in any labor to which he assigns him, and is aware that the servant is, from any cause, disqualified to know, appreciate, and avoid such dangers — the dangers not being obvious — the master is guilty of a breach of duty unless he gives such reasonable cautions and instructions as should reasonably enable the servant, exercising due care, to do the work with safety to himself.” Whitelaw v. Railroad, 16 Lea, 391, 1 S. W., 37; Iron Co. v. Pace, 101 Tenn., 476, 48 S. W., 232. — 577 — In the present case there is proof tending to show that skill and experience were required in readjusting the displaced columns, and, unless certain precautions were observed, there was danger attending the work. The proof is that, to be safe, the jack must be operated on a plumb line and square, and that it is dangerous to operate it when placed in any other position. This danger was not obvious, and would not be discernible to a common laborer, employed in what was known as a “floating gang.” But the foreman of the carpenter’s gang was chargeable, as a matter of law, with such knowledge, and it was his duty to acquaint inexperienced employees with the danger, and to give them warning advice and instructions how to avoid it. On this subject the court charged the jury in accordance with the well-established rule as follows, viz.: “If the proof shows that the plaintiff was an unskilled workman, and that the work of adjusting these upright columns with a jack and piece of timber was dangerous, and required a skilled mechanic to perform, and the defendant company knew of these dangers, that the plaintiff had no experience in this kind, of work, that he was ignorant of the dangers, and the proper way in which to do it; and if no notice of these dangers was given to the plaintiff, and no instructions given him as to how to do the work, which, if they had been given him and followed, would have prevented the accident; or if wrong instructions were given by the defendant, or by a super — 578 — ior servant, as to tbe way in which this particular work should have been done; and if plaintiff was injured while doing said work by reason of the negligence of the defendant in failing to warn him of the danger, or give hiin proper instructions, or by giving him wrong instructions — then the plaintiff would be entitled to recover.” There can be no exception properly taken to the instructions given by the circuit judge as quoted above. Again, it is alleged in the declaration that the method adopted by. defendant’s foreman for readjusting the columns was not the usual, customary and safe way to do the work, but that it was dangerous and extrahazardous.; and that defendant knew it was not the usual and customary way, and that it was dangerous and hazardous, but that the plaintiff did not know this fact, and could not have known it by the exercise of ordinary care. On this subject the court charged the jury as follows: “Where there are several ways in which to do a particular piece of work, or where there is more than one way in which to do it, the OAvner has a right to say how the work shall be done, and will not be held responsible in damages for injui’i'es resulting to his workmen, simply because he did not adopt the safest and best way to do the work. But if the master adopts a dangerous and hazardous why of doing the work, when there was a reasonably safe way known to him, and if the master knows of the danger, and the servant does not know of it, it is. the duty of the master to inform the servant of the danger; and if the work is dangerous, and requires — 579 — skill in its performance, and unskilled men are selected to do it, it is tbe duty of tbe master to instruct the servant as to tbe work to be done.” We are of opinion that this instruction contained a correct exposition of tbe law on this subject. The fifth assignment is that tbe court erred in refusing tbe following request submitted by counsel for tbe company after tbe delivery of tbe general charge, viz.: “If you find that plaintiff was, at tbe time of tbe acci-' dent, a full-grown man, of ordinary intelligence, and that be was working Aviih tbe floating gang, and that be was directed by tbe boss of tbe floating gang to go and work with tbe carpenter’s gang, and you further find that tbe work with tbe carpenter’s gang — especially tbe work that tbe plaintiff and others were engaged in at the time of tbe accident — was open, if tbe danger was obvious, and could be seen by plaintiff, or if, by tbe exercise of reasonable diligence, plaintiff could have seen it, then be was not entitled to warning or instructions. Tbe plaintiff is bound to exercise bis mind to discover and avoid danger, and, if be fails in this regard, he'is negligent, and cannot recover.” We are of opinion that this request was properly refused, since it was substantially given in tbe general charge as follows: “If tbe plaintiff knew as much about tbe danger of this work as tbe defendant did, or if be could, by the exercise of ordinary diligence, have known it, them there would-be no'necessity for any warning, and the1'plaintiff — 580 — would not be entitled to recover on account of tlie failure of the defendant to warn him of this danger.” The sixth assignment of error is that the court erred in refusing the following instruction submitted by counsel for the defendant company, viz.: “If you find that Jones, who was at the time of this accident to Jarrett in charge of carpenter’s gang, and the foreman, and you further find that he had over him other agents of the company, who were his superiors at that time and place at the furnace, and that there were other bosses and gangs of men, viz., a boss of the floating gang, a boss of the stockhouse gang, a foundry boss and gang, and they were all working at one place — the furnace — and all under the general superintendent of the furnace, and together were engaged to accomplish the one end, viz., the making of iron, then I charge you that Jones, the boss of the carpenter’s gang, would be a fellow servant with Jarrett, the man who received the injury, and that the defendant would not be liable for any accident to Jarrett while pressing these posts apart and placing them in position, resulting from the negligence of Jones in adopting a less safe of two methods in ordinary use in pressing these posts apart, or negligently giving orders to the men while executing the method adopted in replacing the posts in their proper positions.” It is insisted in support of this request that Jones was not a vice principal, but worked as a common laborer; that this particular work was done under the — 581 — order of Porter Gaines, the superintendent; and that Jones had no power to hire or discharge the men. It is insisted that at most he was only the one designated as a leader to take the lead in doing the work, and was in no sense a vice principal; citing Alaska Treadwell Gold Min. Co. v. Whelan, 168 U. S., 86, 18 Sup. Ct., 40, 42 L. Ed., 390. It will be observed that this instruction ignores the fact that plaintiff had been taken from his employment as a member of the floating gang, and ordered to work with the carpenter’s gang — a position requiring mechanical skill and experience, and attended also with more danger. In such exigency it is incumbent on the master, as we have seen from the authorities, to give his employee warning advice and instructions, so as to enable him to perform his new duties with safety to himself. In such a case the liability of the master does not turn on the question whether the act causing the injury was the result of the negligence of a fellow servant, but depends on the question whether the injured servant was ordered into a different sphere of employment by one having authority to do so, and whether the injured servant was given warning advice and instructions. It is not denied that Jarrett was ordered to go into the stock-house, and assist in readjusting the columns. It is claimed on behalf of the company that on the evening before the accident Porter Gaines, superintendent of the works, ordered Jones, the foreman of the carpenter’s gang, to go into the stockhouse and put the pillars back — 582 — in their places. Jones accordingly selected Jarrett and two other bands to assist him in the work. But the plan of accomplishing the work and its details were left entirely to the discretion of Jones. Mr. Gaines, the superintendent, was not present while the work was progressing, and did not assume any supervision or direction thereof. Hence we are of opinion there was no error in declining the request asked, first, because it ignored the duty of the company to give warning advice and instructions to an inexperienced employee about to enter upon a service outside of his regular employment. We find no reversible error in the record^ and the result is the judgment must be affirmed.