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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 character than a mere possessory one. But the plaintiff was not in actual possession of the land when the logs were, cut, which was in winter of 1868, 1869, and he shows no title in himself to the land, except one which is merely colorable. If the plaintiff is not the real owner of the land, and the defendants shall be compelled to pay the judgment which he recovered against them in the circuit court, what rule of law will prevent such owner from bringing an action against them for the same logs, and recovering therein? No such rule has been contended for in this case, and we are not aware that there is any such rule. The fact that a recovery by the holder of a merely colorable title is no bar to a recovery by the real owner demonstrates that none but the real owner can recover."

In McNarra v. Chicago & N. W. R. Co. 41 Wis. 74, it is said: "The title necessary to be proved in order to maintain the action is the same as in an action of trespass quare clausum fregit or in replevin for timber cut and removed by a trespasser from the lands of the plaintiff. In either case, if the lands upon which the trespass was committed were vacant and unoccupied, the plaintiff must prove his title thereto, or he cannot recover. But if he was in the actual possession and occupancy of the land when the trespass was committed, he may maintain trespass or replevin, according to the exigencies of the case, without making any proof of a paper title, unless the defendant prove an adverse title thereto of a higher character than a mere possessory one. Hungerford v. Redford, 29 Wis. 345. In this case the plaintiff showed himself in actual possession of the land at the time of the injury, and the defendant did not show or attempt to show any outstanding adverse title thereto. Hence the plaintiff's possession was sufficient to sustain the action, and he was not required to establish a higher or better title."

In the present case there is a claim of title by both parties. Neither is in actual possession or occupancy. Both are in constructive possession. According to the majority, each would have a right to replevy from the other, and no inquiry of ownership or title is allowable.

One may have a slightly higher grade of constructive possession; but this could only be determined by a comparison of titles,

This is a new doctrine, not supported by reason or authority, and I most respectfully dissent from such holding. In dissenting, I controvert none of the authorities cited by the majority, but, so far as they are applicable, they support the view expressed in this dissent. The majority hold that title cannot be inquired into, and at the same time proceed to inquire into the title to see whether the plaintiff has constructive possession. Not only so, but they pass upon defendant's title, and pronounce it champertous. As to the difference between actual and constructive possession, and the different grades of constructive possession the mass of authorities cited by the majority is wholly unnecessary. The entire subject is fully, ably, and exhaustively discussed in Green v. Cumberland Coal & Coke Co. 110 Tenn. 35, 72 S. W. 459; but I think much of the reasoning of the majority opinion in this case is in conflict with the holding in the Cumberland Coal & Coke Case.

The case of Mansfield v. Northcut, 112 Tenn. 536, 80 S. W. 437, holds that constructive possession is sufficient to sustain the action of forcible entry and detainer. But the action of forcible entry and detainer is maintained upon grounds different from an action of replevin. The only question in an action of forcible entry and detainer is one of possession. Title or ownership is not necessary to be shown. Only two questions are inquired into, viz: (1) Who was in possession? (2) How was that possession lost? Davidson v. Phillips, 9 Yerg. 95, 30 Am. Dec. 393. A trespasser who has no title. whatever may recover from the true owner if his possession is disturbed. Ibid. And the statute expressly provides that in such actions the estate or merits of the title shall not be inquired into. Shannon's Code, § 5103. But in replevin, ownership and right to possession must be shown, and not mere actual possession alone. McFerrin v. Perry, 1 Sneed, 317, and other cases cited, supra.

But I will pursue the matter no further; simply contenting myself with the statement that I am of the opinion the cases cited by the majority opinion do not lead to the result reached, but to the contrary. I cite in support of this dissent the following authorities relied on by the majority: 24 Am. & Eng. Enc. Law, 2d ed. p. 486; Cobbey, Replevin, §§ 353, 376, and other sections; Cooper v. Watson, 73 Ala. 252, 255;

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 hence to the defendant in error, the brakeman on that train; and therefore the company would not be liable to him for an injury caused by the negligence of such passenger conductor. This demurrer was overruled by the circuit-court judge, and his action on this matter forms the subject of the first assignment of error, which we shall now proceed to consider.

LOUISVILLE & NASHVILLE RAILROAD
COMPANY, Plff. in Err.,

v.

E. C. DILLARD.

(....

Tenn.......)

1. The conductor of a passenger train cannot be regarded as in a separate department of service from a brakeman 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.

senger train was the fellow servant of the brakeman on the freight train, or whether such conductor stood in the relation of vice principal to the brakeman.

In our latest case upon the subject (Ohio River & C. R. Co. v. Edwards, 111 Tenn. 31, 76 S. W. 897) it is said: "The mere superiority in dignity, grade, or compensation, in favor of one servant of a common principal over other servants, is not a mark by which to distinguish whether or not the former is a vice principal. . . The most general test is that, in order to be a in the place of his master as vice principal, a servant must so far stand to be charged in the particular matter with the performance of a duty towards the inferior which, under the law, the master owes to such servant,―as furnishing tools (Guthrie v. Louisville & N. R. Co. 11 Lea, 372, 47 Am. Rep. 286), or machinery and appliances (Louisville & N. R. Co. v. Lahr, 86 Tenn. 335, 341, 6 S. W. 663), or giving orders with respect to work to be done by the subordinate (Nashville C. & St. L. R. Co. v. Handman, 13 Lea, 423, 429). A test frequently stated in our cases is the authority to give orders, as a vice principal, to the subordinate servant, in directing him when, where, and how to work. .. Some illustrations of the foregoing are seen in the following cases: Louisville & N. R. Co. v. Bowler, 9 Heisk. 866; Louisville & N. R. Co. v. Northington, 91 Tenn. 56, 16 L. R. A. 268, 17 S. W. 880; Chattanooga Electric R. Co. v. Lawson, 101 Tenn. 408, 409, 47 S. W. 489. In these cases a section boss was held to stand

·

ror.

2. After a master has exercised due care in the selection of servants, the danger arising from the negligence of a fellow servant is one which is voluntarily assumed by a person going into the service of the master; it being a risk for which satisfactory compensation is presumed to have been rendered by the larger wages he can earn in such service than in other employments.

(March 18, 1905.)

IRROR to the Circuit Court for Sumner

E

County to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by negligence for which defendant was responsible. Reversed.

The facts are stated in the opinion.
Messrs. Seay & Seay for plaintiff in er-

Messrs. B. F. Proctor and J. D. G. Morton for defendant in error.

Neil, J., delivered the opinion of the

court:

This action was brought in the circuit court of Sumner county to recover damages for an injury inflicted upon the foot of the defendant in error in a collision that occurred in November, 1902, at Hendersonville, on the line of the plaintiff in error, between a freight train and a passenger train. There were verdict and judgment in the court below and the railway company, after motion for a new trial had been overruled, appealed and assigned errors.

The defendant in error was a brakeman on the freight train. The declaration con

NOTE. As to when conductor is deemed to be a coservant of other railroad employees, including his relation to members of crews of other trains, see also note to Jackson v. Norfolk & W. R. Co. 46 L. R. A. 337.

For a case in this series holding that conductor of one train is not a fellow servant of a

brakeman on another train, see Daniel v. Chesapeake & O. R. Co. 16 L. R. A. 383.

On the question whether railroad servants working on different trains are fellow servants generally, see cases in note to Sofield v. Guggenheim Smelting Co. 50 L. R. A. 431.

as a vice principal to the section hands under him because he had power to order them with respect to their work, and also because it was his duty to see that they had proper tools with which to work. In East Tennessee & W. N. C. R. Co. v. Collins, 85 Tenn. 227, 1 S. W. 883, and Louisville & N. R. Co. v. Martin, 87 Tenn. 398, 3 L. R. A. 282, 10 S. W. 772, it was held that the engineer was the vice principal of the brakeman on a train, when, in the absence of the conductor, he had power to give the brakeman orders in respect to his work, but otherwise not; and in East Tennessee, V. & G. R. Co. v. Wright, 100 Tenn. 56, 42 S. W. 1065, it was held that the conductor stands as vice principal to all of the train force, because they are all under his orders." To the same effect, Illinois C. R. Co. v. Spence, 93 Tenn. 173, 42 Am. St. Rep. 907, 23 S. W. 211.

Co. 3 Coldw. 222); for the same reason, that a section foreman was not the fellow servant of the train crew (Nashville & C. R. Co. v. Carroll, 6 Heisk. 347, 361); that a watchman was not the fellow servant of an engineer (Louisville & N. R. Co. v. Robertson, 9 Heisk. 276); a telegraph operator at a way station not the fellow servant of the conductor of a train (East Tennessee, V. & G. R. Co. v. De Armond, 86 Tenn. 73, 6 Am. St. Rep. 816, 5 S. W. 600); a car inspector not the fellow servant of the crew of a switch engine (Taylor v. Louisville & N. R. Co. 93 Tenn. 307, 27 S. W. 663); a depot agent not the fellow servant of the conductor of a train (Louisville & N. R. Co. v. Jackson, 106 Tenn. 438, 61 S. W. 771); a bridge crew not the fellow servant of the crew of a freight train (Freeman v. Illinois C. R. Co. 107 Tenn. 340, 64 S. W. 1); and an engineer not the fellow servant of a telegraph operator (Illinois C. R. Co. v. Bentz, 108 Tenn. 670, 58 L. R. A. 690, 91 Am. St. Rep. 763, 69 S. W. 317).

In this state the departmental doctrine is recognized in railway cases. The grounds on which it rests are thus stated in Coal Creek Min. Co. v. Davis, 90 Tenn. 711, 719, 720, 18 S. W. 387, 389: "The doctrine rests upon the theory that the vast extent of the business of railway companies has led to the division of their business into separate and distinct departments; that, by reason of this division, a servant in one branch or department has no sort of association or connection with one in another department; that this absence of association gives the servant no opportunity of observing the character of a servant in another department of labor, and no opportunity to guard against the negligence 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."

We have no case holding that separate trains constitute separate and distinct departments of railway service; nor do we think they can be so treated on principle. The reason underlying the departmental doctrine resides in, as already stated, the need of consociation to enable coemployees to judge of the caution, diligence, and efficiency of each other, in order that they may properly protect themselves against negligence. In distinct departments of the service they are regarded as constantly working apart from each other, without the opportunity of mutual observation and criticism. This reason, however, cannot be held to apply to the crews of different trains running upon the tracks of the same company. It does not appear that such crews are permanently attached to any special trains. Moreover, even if not associated upon the same train, the crews of each train, in passing and repassing and in mingling with each other in the handling of traffic in the course of their work, necessarily have an opportunity of judging to some extent how the various trains are managed by the people who man them. At best, the amelioration of the dangers incident to a

The conductor of the passenger train in question, however, had no power to give orders to the brakeman on the freight train. This ground for adjudging the relation of vice principal and of servant thereunder did not, therefore, exist. Was the conductor of the passenger train charged with any of the personal duties of the master towards the brakeman on the freight train? Was he charged with the duty of furnishing tools and appliances or a safe place to work? There is nothing to show that he was charged with such duties. Was the passenger conductor in charge of, or engaged in, a separate department of the master's business?

Under this doctrine, it has been held that a track repairer was in a different department from, and hence not the fellow servant of, the crew of a train running upon the track (Haynes v. East Tennessee & G. R.

If the conductor of the passenger train in question had no control over the brakeman on the freight train, or was not charged with any duty of the master towards him, as in the furnishing of tools and appliances or a safe place to work, or was not in a different

December 16, 1889. About two hours before this passenger train arrived at Alexander, a station 10 miles south of Little Rock, the conductor of a construction train of the railroad company caused the switch of the spur track at that place to be opened, ran his train upon that track and then ran it north to Little Rock, and left the switch open, when it was his duty to close it. The passenger train ran into the open switch, The weight of authority likewise supports and Mr. Needham was killed. In answer to this conclusion. Baltimore & O. 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. 5v Fed. 186-188; "The line of demarcation between the absoSt. Louis, I. 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 machinery furnished by v. Devinney, 17 Ohio St. 197. There are the employer? If so, it is his personal other cases holding a contrary view. Madduty to exercise ordinary care to perform den v. Chesapeake & O. 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 furChesapeake & O. 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 perEdmund, 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 consti-formance. The roadbed, ties, tracks, statute separate departments or that they are equivalent thereto, because the crews of such separate trains are "so disconnected as not to give the one a right or opportunity for controlling, admonishing, or even observing the manner of the colaborers doing his work." We have already held this distinction inadmissible, in a former part of this opinion. The substance of the West Virgin

tions, rolling stock, and all the appurte nances of a well-equipped railroad together constitute a great machine for transportation. It is the duty of the railroad company to use ordinary care to furnish a sound and reasonably safe machine, to use due diligence to keep it in proper repair, and to use ordinary care to employ reasonably competent servants to operate it; but, when this duty is performed, the duty rests upon the servants to operate it carefully.

ia cases (both collision cases), as we un

derstand them, is that it is the personal duty of the master to keep the way clear,

and that each conductor in charge of a train
should be regarded as representing the mas-
ter for that purpose. We think this view
is fully met by the reasoning of Sanborn,
J., in St. Louis, I. M. & S. R. Co. v. Need-
ham, 25 L. R. A. 837, 11 C. C. A. 56, 27 U.
S. App. 227, 63 Fed. 107, 112. In that case
it appeared there was a rule of the company
which provided "that conductors of all
trains, when approaching meeting points
where they are to take the siding, must go
to the forward part of trains, and attend
to the switch in person. On train leaving
the siding, they must set up switch for the
main track in person. Conductors must not
assign this duty to anyone, but must attend
to it in person in every instance." The de-
cedent was a fireman on a passenger train
running south from Little Rock, Arkansas,

In the case before us there is no evidence
that the conductor who negligently left
the switch open was not selected with rea-
There is no claim that there
sonable care.
was any defect in the switch that hindered
or prevented the conductor from closing it.
The company furnished a switch sufficient
to move the rails, and used due care in
selecting the servant to operate it. Before
this servant commenced to operate it, the
switch was closed, so that the passenger
train on which the decedent was killed
might have passed in safety. It became
the duty of the conductor, in the operation
of the railroad, to open this switch, and to
run his train through it upon the spur
track. He did so. It then became his duty
to take his train off the spur track and to
close the switch. He took his train off and

department of the master's service (and we have seen that he had no such powers and bore no such relation), which are the only exceptions our cases recognize as taking coemployees out of the class of fellow servants, then the said conductor and brakeman were fellow servants, and the master was not liable for the injuries inflicted upon one by the negligence of the other. This conclusion seems inevitable, on principle.

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 one room 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 inflicted is unsafe. The test of liability is not the safety of the place nor of the machinery at the instant of injury, but the character of the duty, the negligent performance of which caused the injury. Was it a duty of construction, preparation, or repair, or was it a duty of operation of the machine? In our opinion, the duty of opening and closing a switch in the ordinary operation of a railroad is not one of the personal duties of the master, but a duty of operation,-a duty of the servant,for negligence in the discharge of which another servant of the same master, engaged in operating a train over the same railroad, cannot recover."

And it was well said by Brewer, J., in Howard v. Denver & R. G. R. Co. 26 Fed. 837, 842,-a collision case: "It will not do to say that, because Ryan's engine was in the way, and collided with decedent's train, the track was not clear, and therefore the master had failed in his duty of providing a safe place for the employee to work in and upon. The negligent use by one employee of perfectly safe machinery will seldom be adjudged a breach of the master's duty of providing a safe place for other employees. Such a construction would make any negligent misplacement of a switch, any negligent collision of trains, even any negligent dropping of tools about a factory, a breach of the duty of providing a safe place. The true idea is that the place and the instruments must in themselves be safe, for this

To admit the qualification into the law of master and servant sought to be introduced in this case, making the conductor of one train the vice principal of employees upon another train, thereby declaring each train to constitute a separate department of the service, would practically break down the whole law of fellow servants as previously understood in this state. The law as it exists in this state is not unfair either to the master or the servant. While, on the one hand, it seems, on a casual view, that it is a hardship upon the servant to deny him relief for an injury inflicted upon him by the negligence of a fellow servant in whose selection he had no voice, yet it seems equally hard to make the master liable to one of his servants for the negligence of another servant when he (the master) has exercised due care in selecting such servant. What more could he do? It is impossible that he should supervise and control every act of his servants. Yet if he is made liable to each of his servants for every act of all of his servants in the course of the employment,—and there may 'e, and there often are, thousands of them,—the law then places upon him a duty which everyone knows that no one can discharge. The true and just view is that expressed in our cases, that, after the master has exercised due care in the selection of his servants, the danger arising from the negligence of a fellow servant is a danger which one going into the service voluntarily assumes; and it is a risk for which it is presumed he is

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