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where, as in this case, the land is unoc- , which is not allowed. Both have constructcupied. Had he been in the actual posses- ive possession, and, under the opinion of sion and occupancy of the land when the the majority, each may maintain replevin; logs were cut, he could have maintained but neither is required to show ownership this action without making any proof what- or title on which constructive possession is ever of a paper title, unless the defendants based. proved an adverse title thereto of a higher This is a new doctrine, not supported by cliaracter than a mere possessory one.

But reason or authority, and I most respectfully the plaintiff was not in actual possession dissent from such holding. In dissenting, I of the land when the logs were, cut, which controvert none of the authorities cited by was in winter of 1868, 1869, and he show's the majority, but, so far as they are applino title in himself to the land, except one cable, they support the view expressed in which is merely colorable. If the plaintiff this dissent. The majority hold that title is not the real owner of the land, and the cannot be inquired into, and at the same defendants shall be compelled to pay the time proceed to inquire into the title to see judgment which he recovered against them whether the plaintiff has constructive posin the circuit court, what rule of law will session. Not only so, but they pass upon prevent such owner from bringing an action defendant's title, and pronounce it champeragainst them for the same logs, and recover- tous. As to the difference between actual ing therein? No such rule has been con- and constructive possession, and the differtended for in this case, and we are not ent grades of constructive possession the aware that there is any such rule. The fact mass of authorities cited by the majority is that a iecovery by the holder of a merely wholly unnecessary. The entire subject is colorable title is no bar to a recovery by the fully, ably, and exhaustively discussed in real owner demonstrates that none but the Green v. Cumberland Coal & Coke Co. 110 real owner can recover."

Tenn. 35, 72 S. W. 459; but I think much In McNarra v. Chicago & N. W. R. Co. of the reasoning of the majority opinion in 41 Wis. 74, it is said: “The title neces- this case is in conflict with the holding in sary to be proved in order to maintain the the Cumberland Coal & Coke Case. action is the same as in an action of tres- The case of Mansfield v. Northcut, 112 pass quare clausum fregit or in replevin for Tenn. 536, 80 S. W. 437, holds that contimber cut and removed by a trespasser structive possession is sufficient to sustain from the lands of the plaintiff. In either the action of forcible entry and detainer. case, if the lands upon which the trespass But the action of forcible entry and dewas committed were vacant and unoccupied, tainer is maintained upon grounds different the plaintiff must prove his title thereto, or from an action of replevin. The only queshe cannot recover. But if he was in the action in an action of forcible entry and detual possession and occupancy of the land tainer is one of possession. Title or ownerwhen the trespass was committed, he may ship is not necessary to be shown. Only maintain trespass or replevin, according to two questions are inquired into, viz: (1) the exigencies of the case, without making Who was in possession? (2) How was that any proof of a paper title, unless the de possession lost? Davidson v. Phillips, 9 fendant prove an adverse title thereto of a Yerg. 95, 30 Am. Dec. 393. A trespasser higher character than a mere possessory who has no title. whatever may recover from

Hungerford v. Redford, 29 Wis. 345. the true owner if his possession is disturbed. In this case the plaintiff showed himself Ibid. And the statute expressly provides in actual possession of the land at the time that in such actions the estate or merits of of the injury, and the defendant did not the title shall not be inquired into. Shanshow or attempt to show any outstanding non's Code, $ 5103. But in replevin, owneradverse title thereto. Hence the plaintiff's ship and right to possession must be shown, possession was sufficient to sustain the ac- and not mere actual possession alone. Mction, and he was not required to establish Ferrin v. Perry, 1 Sneed, 317, and other a higher or better title.”

cases cited, supra. In the present case there is a claim of But I will pursue the matter no further; title by both parties. Neither is in actual simply contenting myself with the statepossession or occupancy. Both are in con- ment that I am of the opinion the cases structive possession. According to the ma- cited by the majority opinion do not lead to jority, each would have a right to replevy the result reached, but to the contrary. I from the other, and no inquiry of ownership cite in support of this dissent the following or title is allowable.

authorities relied on by the majority: 24 One may have a slightly higher grade of Am. & Eng. Enc. Law, 2d ed. p. 486; Cobconstructive possession; but this could only bey, Replevin, $$ 353, 376, and other secbe determined by a comparison of titles, / tions; Cooper v. Watson, 73 Ala. 252, 255;

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Anderson v. Hapler, 34 Ill. 436, 439, 85 Am. ) tained counts on the negligence of the train
Dec. 318, and cases cited; Stockwell v. despatcher, the negligence of the conductor
Phelps, 34 N. Y. 363, 90 Am. Dec. 710; Page of the freight train, and the negligence of
v. Fowler, 28 Cal. 605, 610; Rees v. Higgins, the conductor of the passenger train. To
9 Kan. App. 832, 834, 61 Pac. 500; Hart v. the last-mentioned count—the third—there
Vinsant, 6 Heisk. 616, directly in point. was a demurrer filed, raising the question

that the conductor on the passenger train
stood in the relation of fellow servant to

the train crew of the freight train, and LOUISVILLE & NASHVILLE RAILROAD hence to the defendant in error, the brakeCOMPANY, Piff. in Err.,

man on that train; and therefore the com

pany would not be liable to him for an inE. C. DILLARD.

jury caused by the negligence of such pas

senger conductor. This demurrer was over(......Tenn.......)

ruled by the circuit-court judge, and his ac1. The conductor of a passenger train

tion on this matter forms the subject of the cannot be regarded as in a separate first assignment of error, which we shall department of service from a brakeman now proceed to consider. of a freight train, so as to render the rail- The first assignment of error raises the road company liable for injury to the latter question whether the conductor on the pas

by his negligence. 2. After

master has exercised due senger train was the fellow servant of the
selection of servants,

brakeman on the freight train, or whether the danger arising from the negligence of a

such conductor stood in the relation of vice fellow servant is one which is voluntarily principal to the brakeman. assumed by a person going into the service of

In our latest case upon the subject (Ohio the master; it being a risk for which satisfactory compensation is presumed to have been

River & C. R. Co. v. Edwards, 111 Tenn. rendered by the larger wages he can earn in 31, 76 S. W. 897) it is said: “The mere such service than in other employments. superiority in dignity, grade, or compensa

tion, in favor of one servant of a common (March 18, 1905.)

principal over other servants, is not a mark RROR to the Circuit Court for Sumner former is a vice principal. . : : The

by which to distinguish whether or not the E

County to review a judgment in favor most general test is that, in order to be a of plaintiff in an action brought to recover damages for personal injuries alleged to in the place of his master as to be charged

vice principal, a servant must so far stand have been caused by negligence for which de- in the particular matter with the performfendant was responsible. Reversed. The facts are stated in the opinion.

ance of a duty towards the inferior which,

under the law, the master owes to such Messrs. Seay & Seay for plaintiff in er

servant,-as furnishing tools (Guthrie v. Messrs. B. F. Proctor and J. D. G. Louisville & N. R. Co. 11 Lea, 372, 47 Am. Morton for defendant in error.

Rep. 286), or machinery and appliances

(Louisville & N. R. Co. v. Lahr, 86 Tenn. Neil, J., delivered the opinion of the 335, 341, 6 S. W. 663), or giving orders with court:

respect to work to be done by the subordiThis action was brought in the circuit nate (Nashville O. & St. L. R. Co. v. Handcourt of Sumner county to recover damages man, 13 Lea, 423, 429). A test frequently for an injury inflicted upon the foot of the stated in our cases is the authority to give defendant in error in a collision that oc- orders, as a vice principal, to the subordicurred in November, 1902, at Hendersonville, nate servant, in directing him when, where, on the line of the plaintiff in error, between and how to work. Some illustrations a freight train and a passenger train. There of the foregoing are seen in the following were verdict and judgment in the court be

Louisville & N. R. Co. v. Bowler, 3 low and the railway company, after motion | Heisk. 866; Louisville & N. R. Co. v. Northfor a new trial had been overruled, appealed ington, 91 Tenn. 56, 16 L. R. A. 268, 17 S. and assigned errors.

W. 880; Chattanooga Electric R. Co. v. LawThe defendant in error was a brakeman son, 101 Tenn. 408, 409, 47 S. W. 489. In on the freight train. The declaration con- these cases a section boss was held to stand

ror.

cases:

NOTE.--As to when conductor is deemed to be brakeman on another train, see Daniel v. Chesa a coservant of other railroad employees, in- peake & O. R. Co. 16 L. R. A. 383. cluding his relation to members of crews of On the question whether railroad servants other trains, see also note to Jackson v. Norfolk working on different trains are fellow servants & W. R. Co. 46 L. R. A. 337.

generally, see cases in note to Sofield v. GuggenFor a case in this series holding that con- heim Smelting Co. 50 L. R. A. 431. ductor of one train is not a fellow servant of a

as a vice principal to the section hands un- Co. 3 Coldw. 222); for the same reason, der him because he had power to order them that a section foreman was not the fellow with respect to their work, and also because servant of the train crew (Nashville & C. it was his duty to see that they had proper R. Co. v. Carroll, 6 Heisk. 347, 361); that tools with which to work. In East Tennes- a watchman was not the fellow servant of -see & W. N. C. R. Co. v. Collins, 85 Tenn. an engineer (Louisville & N. R. Co. v. Rob227, 1 S. W. 883, and Louisville & N. R. Co. ertson, 9 Heisk. 276); telegraph operator v. Martin, 87 Tenn. 398, 3 L. R. A. 282, 10 at a way station not the fellow servant of S. W. 772, it was held that the engineer was the conductor of a train (East Tennessee, the vice principal of the brakeman on a V. & G. R. Co. v. De Armond, 86 Tenn. train, when, in the absence of the conductor, 73, 6 Am. St. Rep. 816, 5 S. W. 600); a he had power to give the brakeman orders car inspector not the fellow servant of the in respect to his work, but otherwise not; crew of a switch engine (Taylor v. Louisville and in East Tennessee, V. & G. R. Co. v. & N. R. Co. 93 Tenn. 307, 27 S. W. 663); Wright, 100 Tenn. 56, 42 S. W. 1065, it was a depot agent not the fellow servant of the held that the conductor stands as vice prin conductor of a train (Louisville & N. R. cipal to all of the train force, because they Co. v. Jackson, 106 Tenn. 438, 61 S. W. are all under his orders.” To the same 771); a bridge crew not the fellow servant effect, Illinois C. R. Co. v. Spence, 93 Tenn. of the crew of a freight train (Freeman v. 173, 42 Am. St. Rep. 907, 23 S. W. 211. Mlinois C. R. Co. 107 Tenn. 340, 64 S. W.

The conductor of the passenger train in 1); and an engineer not the fellow servant question, however, had no power to give of a telegraph operator (Illinois C. R. Co. orders to the brakeman on the freight train. v. Bentz, 108 Tenn. 670, 58 L. R. A. 690, This ground for adjudging the relation of 91 Am. St. Rep. 763, 69 S. W. 317). vice principal and of servant thereunder did We have no case holding that separate not, therefore, exist. Was the conductor of trains constitute separate and distinct dethe passenger train charged with any of the partments of railway service; nor do we personal duties of the master towards the think they can be so treated on principle. brakeman on the freight train? Was he The reason underlying the departmental charged with the duty of furnishing tools doctrine resides in, as already stated, the and appliances or a safe place to work? need of consociation to enable coemployees There is nothing to show that he was to judge of the caution, diligence, and efficharged with such duties. Was the passen- ciency of each other, in order that they ger conductor in charge of, or engaged in, a may properly protect themselves against separate department of the master's busi- negligence. In distinct departments of the ness?

service they are regarded as constantly In this state the departmental doctrine is working apart from each other, without the recognized in railway cases. The grounds opportunity of mutual observation and criton which it rests are thus stated in Coal icism. This reason, however, cannot be held Creek Min. Co. v. Davis, 90 Tenn. 711, 719, to apply to the crews of different trains 720, 18 S. W. 387, 389: "The doctrine rests running upon the tracks of the same comupon the theory that the vast extent of the pany. It does not appear that such crews business of railway companies has led to the are permanently attached to any special division of their business into separate and trains. Moreover, even if not associated distinct departments; that, by reason of this upon the same train, the crews of each division, a servant in one branch or depart-train, in passing and repassing and in minment has no sort of association or connection gling with each other in the handling of with one in another department; that this traffic in the course of their work, necessarily absence of association gives the servant no have an opportunity of judging to some exopportunity of observing the character of a tent how the various trains are managed by servant in another department of labor, and the people who man them. At best, the no opportunity to guard against the negli- amelioration of the dangers incident to a gence of such servant. The want of conso hazardous business cannot be very great for ciation is the idea underlying this limita- the servants of a common master, even tion. This rule has not been extended by us when they work in the same department, beyond railroad corporations, and we are

where the number of such coemployees is not disposed to extend it further than to the great, as very often happens in the railway class of employments to which it has been business, and in other kinds of business. heretofore limited.”

li the conductor of the passenger train in Under this doctrine, it has been held that question had no control over the brakeman a track repairer was in a different depart- on the freight train, or was not charged with ment from, and hence not the fellow serv- any duty of the master towards him, as in ant of, the crew of a train running upon the the furnishing of tools and appliances or a track (Haynes v. Eust Tennessee & G. R. I safe place to work, or was not in a different

department of the master's service (and we | December 16, 1889. About two hours before have seen that he had no such powers and this passenger train arrived at Alexander, a bore no such relation), which are the only station 10 miles south of Little Rock, the exceptions our cases recognize as taking co- conductor of a construction train of the employees out of the class of fellow servants, railroad company caused the switch of the then the said conductor and brakeman were spur track at that place to be opened, ran fellow servants, and the master was not lia- his train upon that track and then ran it ble for the injuries inflicted upon one by the north to Little Rock, and left the switch negligence of the other. This conclusion open, when it was his duty to close it. The seems inevitable, on principle.

passenger train ran into the open switch, The weight of authority likewise supports and Mr. Needham was killed. In answer to this conclusion. Baltimore &0. R. Co. v. the contention that it was the personal duty Andrews, 17 L. R. A. 191, 1 C. C. A. 636. of the master to make and keep the way 6 U. S. App. 75, 50 Fed. 728; Kerlin v. Chi- safe, the court, among other things, said: cago, P. & St. L. R. Co. 50 Fed. 186–188; “The line of demarcation between the absoSt. Louis, 1. M. & S. R. Co. v. Needham, lute duty of the master and the duty of the 25 L. R. A. 837, 11 C. C. A. 56, 27 U. S. servants is the line that separates the work App. 227, 63 Fed. 107, 112; Northern P. R. of construction, preparation, and preservaCo. v. Mase, 11 C. C. A. 63, 27 U. S. App. tion from the work of operation. Is the 238, 63 Fed. 114; MoMaster v. Illinois C. R. act in question work required to construct, Co. 65 Miss. 264, 268, 7 Am. St. Rep. 654, to prepare, to place in a safe location, or to 657, 4 So. 59; Pittsburg Ft. W. & C. R. Co. keep in repair the inachinery furnished by v. Devinney, 17 Ohio St. 197. There are

the employer? If so, it is his personal other cases holding a contrary view. Mad- duty to exercise ordinary care to perform den v. Chesapeake & 0. R. Co. 28 W. Va. it. Is the act in question required to prop617, 618, 57 Am. Rep. 695-697; Daniel v.

erly and safely operate the machinery fur. Chesapeake & 0. R. Co. 36 W. Va. 397, 411, nished, or to prevent the safe place in 413, 417, 419, 16 L. R. A. 383, 387, 389, which it was furnished from becoming dan390, 32 Am. St. Rep. 870, 882, 885, 888, 889, gerous through its negligent operation? If 15 S. E. 162; Louisville & N. R. Co. v.

so, it is the duty of the servants to per. Edmund, 23 Ky. L. Rep. 1049, 64 S. W. 727.

form that act, and they, and not the master, The Kentucky case is based, in substance,

assume the risk of negligence in its peron the ground that separate trains constitute separate departments or that they are

formance. The roadbed, ties, tracks, staequivalent thereto, because the crews of such tions, rolling stock, and all the appurte

nances of a well-equipped railroad together separate trains are "so disconnected as not

constitute a great machine for transportato give the one a right or opportunity for tion. It is the duty of the railroad comcontrolling, admonishing, or even observing the manner of the colaborers doing his pany to use ordinary care to furnish a work.” We have already held this distinc sound and reasonably safe machine, to use tion inadmissible, in a former part of this due diligence to keep it in proper repair. opinion. The substance of the West Virgin

and to use ordinary care to employ reasonia cases (both collision cases), as we un

ably competent servants to operate it; but, derstand them, is that it is the personal when this auty is performed, the duty rests duty of the master to keep the way clear, upon the servants to operate it carefully. and that each conductor in charge of a train In the case before us there is no evidence should be regarded as representing the mas

that the conductor who negligently left ter for that purpose. We think this view the switch open was not selected with reais fully met by the reasoning of Sanborn, sonable care. There is no claim that there J., in St. Louis, I. M. & S. R. Co. v. Need

was any defect in the switch that hindered ham, 25 L. R. A. 837, 11 C. C. A. 56, 27 U. or prevented the conductor from closing it. S. App. 227, 63 Fed. 107, 112. In that case The company furnished a switch sufficient it appeared there was a rule of the company to move the rails, and used due care in which provided “that conductors of all selecting the servant to operate it. Before trains, when approaching meeting points this servant commenced to operate it, the where they are to take the siding, must go switch was closed, so that the passenger to the forward part of trains, and attend train on which the decedent was killed to the switch in person. On train leaving might have passed in safety. It became the siding. they must set up switch for the the duty of the conductor, in the operation main track in person. Conductors must not of the railroad, to open this switch, ‘and to assign this duty to anyone, but must attend run his train through it upon the spur to it in person in every instance.” The de track. He did so. It then became his duty cedent was a fireman on a passenger train to take his train off the spur track and to running south from Little Rock, Arkansas, I close the switch. He took his train off and

one

room

proceeded south, but carelessly left the is what the master's duty fairly compels, switch open. His negligence was not in the and not that the master must see that no construction, preparation, or repair of the negligent handling by an employee of the railroad, but in its operation. The rail- machinery shall create danger. Neither can road was safe before he made it unsafe by it be said that Ryan and decedent were enhis negligence in operating it, and he was gaged in a different class of work. Both discharging none of the personal duties of were employed in the movement of trains, the master, but one of the duties of the serv. the same kind of service. True, they were ant, when he became guilty of the fatal on different trains, and at the time of the negligence. Any other holding would anni- accident had no opportunity of noticing the hilate the now settled rule of liability for conduct of each other until too late to prethe negligence of fellow servants. It will vent the collision. But, being engaged in not do to say that the timely movement the same kind of service, and on the same and fastening of a switch in the ordinary division, they must naturally have often operation of a railroad is requisite to pro- been thrown into contact and had ample vide a safe place for the next train to be opportunities for mutual supervision. To operated in, and hence is one of the person- subdivide beyond the class of service, into al duties of the master. Under such a rule. the place of work, would carry the excepit would become the absolute duty of the tion beyond well-recognized limits. It master to so operate all switches, all turn-would make the trainmen on one train not tables, the levers of all engines, all brakes, | fellow servants with those on another; the all cars, and every appurtenance of the rail. carpenters and machinists in road, that every place upon it should at all strangers in service to those of another; times be safe, and no negligence of any em- one gang of section men not coemployees ployee could ever cause an injury to an- with another,-and all because at the time other servant for which the master might their places of work happened to be differnot be held liable. At the instant of the ent." injury every place in which an injury is in- To admit the qualification into the law flicted is unsafe. The test of liability is of master and servant sought to be intronot the safety of the place nor of the ma- duced in this case, making the conductor chinery at the instant of injury, but the oi one train the vice principal of employees character of the duty, the negligent per- upon another train, thereby declaring each formance of which caused the injury. Was train to constitute a separate department it a duty of construction, preparation, or of the service, would practically break down repair, or was it a duty of operation of the the whole law of fellow servants as previmachine ? In our opinion, the duty of ously understood in this state. The law opening and closing a switch in the ordi- as it exists in this state is not unfair either nary operation of a railroad is not one of to the master or the servant. While, on the personal duties of the master, but a the one hand, it seems, on a casual view, duty of operation,-a duty of the servant,- that it is a hardship upon the servant to for negligence in the discharge of which deny him relief for an injury inflicted upon another servant of the same master, en- him by the negligence of a fellow servant gaged in operating a train over the same in whose selection he had no voice, yet it railroad, cannot recover."

seems equally hard to make the master liaAnd it was well said by Brewer, J., in ble to one of his servants for the negligence Howard v. Denver & R. G. R. Co. 26 Fed. of another servant when he (the master) 837, 842,-a collision case: "It will not do has exercised due care in selecting such servto say that, because Ryan's engine was in ant. What more could he do? It is imthe way, and collided with decedent's train, possible that he should supervise and conthe track was not clear, and therefore the trol every act of his servants. Yet if he is master had failed in his duty of providing a

made liable to each of his servants for every safe place for the employee to work in and act of all of his servants in the course of upon. The negligent use by one employee the employment,—and there may 'e, and of perfectly safe machinery will seldom be there often are, thousands of them,—the law adjudged a breach of the master's duty of then places upon him a duty which everyproviding a safe place for other employees. one knows that no one can discharge. The Such a construction would make any negli- true and just view is that expressed in our gent misplacement of a switch, any negli- cases,—that, after the master has exercised gent collision of trains, even any negligent due care in the selection of his servants, the dropping of tools about a factory, a breach danger arising from the negligence of a felof the duty of providing a safe place. The low servant is a danger which one going intrue idea is that the place and the instru-to the service voluntarily assumes; and it ments must in themselves be safe, for this is a risk for which it is presumed he is

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