Norman v. Southern Railway Co.

Mr. Special Justice Henderson delivered the opinion of the Court. This is an action to recover damages for the death of Henry Lucas, alleged to have been caused by the negligence of the railway company. ^At the conclusion of plaintiff’s evidence before the jury, upon motion of defendant, the trial judge directed verdict in favor of defendant, which was rendered, and judgment was accordingly entered. Motion by plaintiff for new trial having been overruled, he appealed in error to the court of civil appeals, where the judgment of the circuit court was affirmed. The case is now before this court upon certiorari. — 407 — The grounds upon which recovery is sought under the 'declaration is that plaintiff’s intestate, Lucas, was employed as a switchman in defendant’s yards, where freight cars were distributed, and while in the performance of his duties as such, and without any fault on Ms part, he was, by a sudden jerk of the train, thrown from the car upon which he stood, and run over and killed.” This sudden jerk is alleged to have been caused by the failure of the conductor to uncouple the car upon which plaintiff’s intestate stood from the rest of the train. It is alleged that this failure to uncouple was >caused, first, by defective coupling appliances, in that the coupling pin was not attached to the lever on the ■outside of the car, thus rendering it necessary for the •conductor to go between the cars and lift the pin; and, ¡second, by the failure of the inspector to discover and indicate the alleged defect, or the failure of the conductor to observe it. The facts are: The deceased, Lucas,, was about twenty-five years of age. He was employed as switch-man in defendant’s yards at Lonsdale, near Knoxville, and had been so employed and engaged in the work for some three years. These yards were used as a place to make distribution of freight cars to be carried on the various lines of defendant connecting at that point. When the train of cars arrives at the yards, it is the duty of the inspector to go around and inspect each car. If any are found to be out of repair to the extent that they should be taken out of the train, he indicates this — 408 — by a certain mark placed upon the car. When the conductor and switchmen find a car thus marked, they take it to what is called the “repair track,” and thqre it is left for repairs. If the inspector finds a car with only slight defects, not sufficient to require the car to go to the repair track, but to be distributed along with the other cars for distribution, he indicates this by a certain other mark, which indicates that the repairers will make the necessary repairs while the car is in the train; the car, however, to be distributed by the conductor and switchmen along Avith the other cars for distribution, as if it was not marked at all. The yards are known as “gravity yards.” The cars to be detached from the train, are backed up by" the engineer to the proper point, where they are uncoupled by the conductor of the yards and allowed to roll down to the proper track, while the SAvitchman rides them and manages the brakes. ' Walter Cates Avas the conductor in charge of the yards on this occasion, and had been for some 3-| years prior thereto. The deceased, Lucas, was the SAvitchman, and, as before stated, had been so employed for some three years, and on different occasions had himself temporarily acted in the capacity of conductor, and was experienced in the business, fully acquainted with the duties. He stood upon the rear end of the rear car to be detached from the train. The train Avas backed slowly — 409 — up, when Cates stepped up to uncouple tbe car, that it might roll down the grade. The train was equipped with couplers constructed with a crank or lever to which is attached a chain fastened to the coupling pin. By the turning or raising of the crank or lever, without going between the cars, the pin is raised and the cars thus uncoupled. On this car the chain had been broken so that the lever did not raise the coupling pin. Cates then went between the cars to raise the pin, but did not succeed in this. The engineer stopped the train, as was usual, when the car upon which deceased stood ran out its slack, as the witnesses say, causing a slight jerk. About this time deceased fell from the car in front of the train as it rolled back, and one wheel ran over his head, crushing his skull, from the effect of which he died. It was not unusual — the witnesses say that it was a common thing of frequent occurrence — that the conductor would fail for one reason or another to uncouple the car at the first effort, a fact which was, of course, known to the deceased, and that at such times there would be a jerk by the sudden stopping of the car attempted to be detached, instead of rolling on down the grade. The inspector did not discover this defect in the coupling appliance, or, if he did, he failed to mark the car, or indicate it in any way. The conductor failed to observe the defect, and failed to detect the mistake of the inspector until he attempted to uncouple. It is insisted — 410 — that this negligence of the inspector and conductor, and particularly of the latter, who was deceased’s superior and vice principal of the company, was the proximate -cause of the death of the deceased, and that such negligence was not one of the risks assumed by deceased in .bis employment. It is argued that this risk arose from the neglect of the master to perform his absolute and positive duty to the servant in furnishing safe appliances; that the death -of the deceased was the proximate result of the failure of the master, who was represented by the inspector and -conductor, to warn the deceased of the existence of a 'danger well known to the master, and of which the master knew the deceased to be ignorant. The failure to uncouple, as above stated, the proof shows, was a very common occurrence, a common incident to the service, with which deceased, an experienced ■switchman, was familiar; and it was clearly his duty to look out and be prepared for such. He knew nothing of the defect in the coupling appliances, it is true; but, -from his experience in matters'of this sort, he knew that, ■whether the appliances were defective or not, the conductor might, for some reason, fail to make the uncoupling, and it was his duty to be prepared for such. Proof of the mere fact that there was a broken link in the chain attached to the coupling pin, so that the lever would not raise it when applied, is not of itself negligence. In this case it was a part of the business of deceased to handle damaged or defective cars. Even if the — 411 — -conductor bad known of tbe defect, and bad attempted, notwithstanding this, to make tbe uncoupling, it would not bave been actionable negligence on bis part to baye failed to notify tbe deceased thereof before attempting to uncouple; for tbe car, in tbe ordinary course of tbe business, would have been distributed as was attempted to he done. The car would bave been taken out of tbe train, even bad its defects been such as to require its removal to tbe repair track; and it was not incumbent ■on tbe conductor to notify tbe deceased of such defects. The inspection and marking of tbe cars was not for tbe warning and benefit of switchmen, but to indicate ■where they must be taken. Whatever their condition was, it was a part of tbe duty of tbe switchmen to ban-file them. There is more or less danger attached to this. While it is the general rule that tbe master must furnish a safe place to work and safe appliances, tbe rule •cannot be of universal application. It is held not to apply in cases of working of mines, when tbe “very work tbe servants are employed to do consists in making a dangerous place safe, or in constantly changing tbe character of tbe place for safety as tbe work progresses” Heald v. Wallace, 109 Tenn., 364, 71 S. W., 84; Smith v. Coal & Iron Co., 115 Tenn., 543, 92 S. W., 62. Discussing the cases on this subject, it is said, in 1 Labatt on Master and Servant, section 268: “These decisions proceed upon tbe broad ground that employers cannot be required to warn their men of every transitory risk, when tbe only thing tbe men do — 412 — not know is the precise time when the danger will supervene, nor when the actual danger which caused the .injury was due to transitory occurrence of such, a nature that the plaintiff must have known that it would probably happen from time to time.” The rule requiring the master to furnish safe place and safe appliances is earnestly urged and relied on by counsel for plaintiff. Its inapplicability to facts similar in many respects to those of this case is forcibly and aptly illustrated by the opinion of Judge Lurton in the case of Chesapeake & Ohio R. R. Co. v. Hennessey, 96 Fed., 713, 38 C. C. A., 307. In that case the plaintiff, Hennessey, was employed as a switchman in the defendant’s yards, and it was a part of his duty to handle defective cars. He was injured while making a coupling to a damaged car, of which he had no actual knowledge or. notice. There were two questions in the case upon which, the company’s liability depended. The first was whether the company, was negligent in 'permitting the car in question to be and remain in the damaged and dangerous condition it was in when Hennessey in the course of his duty undertook to couple it to another car. Second, whether the company was negligent in not giving to Hennessey notice of that condition before allowing him to make the coupling. On the first question it was held that a switchman employed by the railroad company in its switch-yards at the end of a division, where trains were inspected and defective cars taken out and placed on side tracks for repair or — 413 — removal to the 'shop, and whose daily duty it is to couple and handle such defective cars, assumes the extra risk due to their defective condition, and which is necessarily incident to his employment. In discussing this question, Judge Lurton uses the following language, which is pertinent to the case under investigation: “That a railway company is under obligation to its employees to exercise every reasonable precaution to see to it that damaged cars are not admitted into its trains is well established. . . . That employees may ordinarily rely upon this being the case is also elementary. The rule stated is hut an application of the general rule that the master personally owes to the servant the duty of using care and caution in providing for his use reasonably safe instrumentalities of service. . . . This, as to railway companies, involves the duty of inspection and of removing from trains all cars found defective. Unless damaged cars are removed from the trains wherein they have become damaged, and placed where they can be repaired, how is the master to provide reasonably safe cars to those servants who are engaged in the operation of his trains, and who have a right to rely upon the master to see that defective cars are not admitted to its trains, or continued in use after they become damaged? The rule is well settled that if the work of an employee consists, in whole or in part, in dealing with damaged or défective cars, and which by the vei’y nature of his occupation he must know, or have reason to know, are unsafe and dangerous, he volun — 414 — tarily assumes the risks and hazards which are incident to the duty he has engaged to perform. It is not a case where dangerous or defective instrumentalities are supplied by the master to be used in his work, and where notice of such danger should be given, but a case where the instrumentalities to be handled and worked with or upon are understood to involve peril and to demand unusual care. In such cases the risk is assumed by the servant as within the terms of his contract and compensated by his wages.” It can make no difference whether the car was marked by the inspector for the particular defect or not. It was a part of the business of deceased to handle it, whatever its condition. He knew that, whether defective or not,, it might not uncouple, and therefore he must look for a jerk, and be prepared for it. The case of Railway Co. v. Behymer, 189 U. S., 468, 23 Sup. Ct, 622, 47 L. Ed. 905, is cited by counsel for plaintiff as an authority upon the question of the assumption by the brakeman of the risk of the jerking of' the cars. In that case there was verdict and judgment in favor of plaintiff in the State court of Texas, and the case was. carried to the supreme court of the United States by writ of error. The plaintiff, a brakeman, was ordered by the conductor of a local freight to get upon some cars standing on the siding and to let off the brakes, so that the engine might move them to the main track. The top of the cars was covered with ice, as all concerned — 415 — knew. He obeyed the orders. The engine picked up the cars, moved to the main track, and stopped suddenly. Tbe jerk caused by the sudden stop upset plaintiff. The bottom of his trousers caught in a projecting nail on the-running board, and he was thrown between the cars. Plaintiff’s claim is based upon negligence in stopping-the car so suddenly, with a knowledge of his position, in slippery condition of the roof and the projection of the nail, which increased his danger and contributed to-his fall. Stress is laid by the court upon the fact that by a statute of Texas, if there was negligence, the fact that it was the negligence of a fellow servant was not a defense. The court says: “The fundamental error alleged in the exceptions to-the charge is that the court declined to rule that the chance of such an accident as happened was one of the-risks that plaintiff assumed, or that thequestion whether-the defendant was liable for it depended on whether the-freight train was handled in the usual and ordinary way.. Instead of that the court left it to the jury to say whether the train was handled with ordinary care; that is,, the care that a person of ordinary prudence would use under the same circumstances. This exception needs no-discussion. The charge embodied one of the commonplaces of the law.” It is insisted by counsel for plaintiff that the Texas, statute cuts no figure in the case. We think it was controlling, for the main questions to be submitted to the416 jury were whether the engineer negligently backed the train in view of the peculiar conditions existing at the time, and whether the inspector was negligent in leaving the projecting nail in the running board. If negligence in either of these particulars contributing to the injury be shown, under the Texas statute, the defendant would be liable; and the same rule would apply if the conductor gave a negligent order. So there were very material questions of fact to go to the jury. The court further, says: » “No doubt a certain amount of bumping and jerking is to be expected on freight trains, and under ordinary circumstances cannot be complained of, yet it can be avoided if necessary, and, when the particular and known condition of the train makes a sudden bump obviously dangerous to those known to be on top of the cars, we are not prepared to say that a jury would not be warranted in finding that an easy stop is a duty.” As the engineer backed the train, Cates, the conductor, was at his place to shift the lever, when he found it was disconnected from the coupling pin. He says: “And when I got the slack, I reached after the pin as I usually do very often, and when I reached after the pin he [engineer] had just caught the slack against the pin, and I couldn’t get it up. . . . And when I reached ■after the lever, I grabbed for it, but didn’t see it; and, when I reached after it, there was so much slack against it that I couldn’t pull the pin from the car.” Had the chain not been broken, he could have lifted — 417 — the pin without going between the cars, and wonld all the time be in sight of the engineer. When the coupling ■appliance is in good order, the lever still will not raise the pin, unless he works it just as the slack comes. After the lever failed to work in this instance, he stepped .between the cars. In this connection, plaintiff introduced a rule of the -company, the substance of which is to prohibit employees from going between the cars when in motion. If anything connected with the coupling apparatus be -defective, the employee must not attempt to make the •coupling, but must make report of same. Conductors and yard foremen are required to see that trainmen and yardmen do not violate these instructions. The fact that the conductor violated the rule of the company, by going between the cars in order to uncouple, cannot affect the merits of this case. By that act he simply took upon himself the risk of injury, and the rule in this particular instance was for his own protection. It could not in any way contribute to the death of deceased, but exactly the contrary; for if, by this, he had succeeded in making the uncoupling, there would have been no jerk of the car. It is next insisted on behalf of plaintiff that this car was used in interstate traffic, and that the case falls within the federal statute forbidding the use of cars without automatic couplers, and that defendant was negligent in having its employees to handle this car before this coupling was made to comply with the federal stat — 418 — ute. The statute referred to is Act of Cong., March 2, 1898, c. 196, section 2, 27 Stat., 531 [U. S. Comp. St., 1901, p. 3174]: “It shall be unlawful for any such common carrier to haul or permit to be hauled or used on' its line, any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” Section 8: “Any employee of such common carrier who may be injured by any locomotive, car, or train in use contrary to the provisions of this, act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employ of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.” In support of plaintiff’s contention, the two following cases are cited: United States v. Great Northern Ry. Co. (D. C.), 145 Fed., 438; United States v. Southern Pacific Co. (D. C..), 154 Fed., 897. Both cases were actions brought to recover penalties provided by the statute. In the former case, the sole question decided is that the act of congress applies to-all cars regularly used on any railroad engaged in interstate commerce, not only while actually in use in such commerce, but at all times when in use on such road. The question arose upon demurrer to certain causes of action. Whitson, District- Judge, says: — 419 — “To sustain the demurrer would be to hold that it is beyond the power of congress to control the instrumen-talities through which interstate commerce may he carried on. But the prerogative necessarily carried with it the authority to prescribe the rules and regulations which shall apply to those engaged in it. Illustrations of the futility of any effort on the part of congress to exercise its constitutional powers in this regard, if the contention made by the defendant can he sustained, are not far to seek. An interstate carrier might haul traffic from one State to another, then transfer it, and from thence transport it, without any of the safety appliances provided by law.” The latter case (United States v. Southern Pacific Co.) was also on demurrer. There was prosecution for violation of the safety appliance act, in that the chains connecting the lock pins to the uncoupling levers were broken, or missing, as in the case at bar; and, while it is held that it was no defense that the car was moved by defendant without knowledge of the defects, Wolver-ton, District Judge, says: “Admittedly, if a breakage occurs between stations where repair shops are located, and the repairs cannot be made without taking the car to such a place, .the company cannot he held liable until it has had an opporr tunity of making the repair, and in that event it would be justified in hauling the car in the train to the succeeding station where such repairs could be made.” — 420 — We bare thus referred to these cases, since learned counsel has so earnestly pressed the matter of the applicability of the act in question to this case. But no such case as is contended for is made by the declaration. It is only alleged incidentally that defendant was a common carrier operating numerous lines of railroad “running to divers places and points in and beyond the State of Tennessee.” Blut there is even no averment that the particular car referred to as defective was being used in' the carriage of interstate traffic, and thus no notice is given defendant that it will be required to meet the case now contended for. The acts of negligence averred are only those referred to in another connection. Assuming it to be proven that these cars were used in moving interstate traffic which does not definitely appear in the proof, and that the declaration avers a case under the statute,^ the statute has no application to the facts of this case. The couplers are shown to be automatic couplers. They were out of repair, and the defect was of such slight character that it could be repaired with the car in the yards, without the necessity of being taken to the shops. Had the defect been observed by the inspector before the car was detached from the train, the car Tyould still have been detached and distributed, and the repairs thereafter made. To do this switching, when the defect is first discovered as the switching is being done, the failure to repair it at once without attempt — 421 — ing to move the car to another place in the yards would' not in any sense be a violation oí the statute. No matter how skillfully machinery may he constructed, it will get out of repair, and a reasonable time within which to make the repair will be allowed. In this instance the discovery of the defect is simultaneous with the injury, and there is no evidence that the failure to discover it before the car reached the yards was negligence. Learned counsel for plaintiff has submitted an exhaustive brief, citing and discussing numerous decisions, state and federal, on the subject of peremptorily directing verdicts. While the practice in this State is of recent origin, it has long been the practice in other jurisdictions, and its beneficial results in reaching an end of litigation have been demonstrated. The proper application of the rule in particular cases to which it is applicable is not in any sense an invasion of the province of the jury, because it cannot be applied if there be any material controverted fact to be found by the jury. Our first case on the subject is Greenlaw v. Railroad, 114 Tenn., 187, 86 S. W., 1072, opinion by Mr. Justice Wilkes, in which it is said: “There are a number of cases in our books which seem to hold that the practice of directing a verdict does not prevail in Tennessee. Undoubtedly in other jurisdictions the weight of authority is that such a practice is proper and conducive to the prompt and proper determination of legal controversies. . . We think, however, that, wherever the jury is directed to return a ver422 diet, it should be upon a consideration of the entire evidence in the case, and not upon any detached portion of such evidence.” In Tyrus v. Railroad, 114 Tenn., 593, 86 S. W., 1074, Mr. Justice Neil delivering the opinion of the court, it is shown that the trend of oiir own decisions has been in this direction, and they themselves demonstrate the necessity for the adoption of the rule. The rule as laid down in that case is the legitimate deduction from those decisions: “The following we conceive to, be. a sound statement of the matter within the restrictions of our constitution: Where there is no controversy as to any material fact, there is nothing for the jury to find. The question is then one solely of law for the court, and in such a case the court may instruct the jury to return a verdict in accordance with his view of the law applicable to such ascertained or uncontroverted facts. There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried.” Tyrus v. Railroad, 114 Tenn., 593, 86 S. W., 1077. - In Traction Co. v. Brown, 115 Tenn., 329, 89 S. W., 320, opinion by Mr. Justice Wilkes, it is said: “A motion for peremptory instructions is not one which addresses itself to the discretion of the court, but one which presents a question of law; and the crucial — 423 — •question in the case is whether there is any determinative evidence upon which the jury must base a verdict in favor of the party who produces it. “. . . . When a given state of facts is such as reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination ■of the matter is for the jury. It is only where the facts -are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered one of law for the court.” In Kinney v. Railroad Co., 116 Tenn., 451, 92 S. W., 1116, it is said: “There is no power in the trial judge to direct a verdict in any case in which there is-a dispute as to any material, determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence upon the issues to be tried.” Learned counsel for plaintiff lays stress upon the decisions relating to this practice of the United States circuit court of appeals of the sixth circuit, stating that they can be safely followed. A number of the cases of that court are collated and discussed, and it appears from them, which counsel admit, that there is no conflict between the decisions of that court and of this court. It is alleged that one of the chief difficulties in the application of the rule is the disposition of the trial judge to weigh the evidence, pass upon its value, and thus invade and encroach upon the just province of the jury. The'fact that the trial judge may sometimes make im — 424 — proper application of a proper rule of practice can surely constitute no argument against the rule. Tbe same may be said, of many other rules. We think that upon giving- to the evidence in this case the construction most favorable to the plaintiff, and from that evidence and the inferences justly to be drawn therefrom in his favor, there was no controverted question of fact to be submitted to the jury, and that the judgment of the law upon the whole evidence is that plaintiff has not made out a case of negligence against defendant. Such is pre-eminently a proper case for the trial judge to» direct a verdict in favor of defendant. And the judgment of the court of civil appeals, affirming the judgment of the circuit court, is affirmed.