110 Ga. 192 | Ga. | 1900
Rebecca Wells sued the Brush Electric Light and Power Company, a corporation doing business in the city of Savannah, for damages for the homicide of her husband, Mar-low Wells. The material parts of her petition were, in substance, as follows: Her husband was a lineman in the employ of the defendant company, and, in pursuance of his duty, had 0cliuibed one of its poles for the purpose of repairing or changing the wires of the company strung thereon. In order to do the work it became necessary to cut two of the wires. “He had succeeded in cutting one of the said wires, severing it just above the insulator, leaving a small piece or point projecting therefrom. In passing his right arm around the pole to cut the other wire at the same point, he rested his right arm, between the elbow and armpit, on this projecting wire, and in some manner his arm, shoulder, or other hand came in contact with the hanging wire which he had just severed. ' When, therefore, he seized the second wire with his nippers to cut it, he received through his body the powerful voltage from said company’s wire, which caused his death.” He had been sent by the company to do this particular work, and it knew, at the time a current of electricity was turned on, that he was at work on the ■wires, or might have known it by the exercise of proper care and diligence. He had no reason to believe that the current of electricity would be turned on at that time. . It was turned on suddenly and without his knowledge, just as he was engaged in cutting the wires. Her husband was free from fault, etc.
The evidence upon the trial showed that Marlow Wells, who
Counsel for the defendant in error contended that the testimony of the witness Green, which is quoted above, showed that the current that killed Marlow Wells was turned on by Keck, the superintendent .of the defendant company. It is obvious, however, that no such inference can be-fairly drawn from Green’s testimony. It merely showed that Keck, the superintendent, said that a test was to be made before night, but there was nothing from which it could be legitimately inferred that such test would not be made by the engineer turning on the current, as it was his duty to do, and under the usual mile. The engineer testified positively that he turned on the current which killed Wells, and there was no evidence to the contrary. We shall, therefore, consider the case from the standpoint that the engineer turned on the current. There is grave doubt as to whether or not the evidence was sufficient to authorize the jury to find that the engineer did not blow the whistle before he turned on the current from which Wells received the shock which resulted in his death. But granting that the engineer neglected to give the required signal upon that occasion, and that his failure to do so caused Wells’s death, was the defendant, under the law, liable for his homicide ? In other words, would the rule as to fellow-servants, as stated in section 2610 of the Civil Code, •apply? viz., that the master, except in case of railroad com-panies, is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business. Counsel for defendant in error contended that the facts of this case did not bring it within such rule, for the reason that the respective duties of the engineer and the lineman, Wells, were performed in different departments of the company’s business, so that there was no opportunity for the exer
Counsel for defendant in error also cited Atlanta Cotton Factory Co. v. Speer, 69 Ga. 137, Bain v. Athens Foundry, 75 Ga. 718, Krogg v. Railroad Co. 77 Ga. 202, and Hough v. Railroad Co., 100 U. S. 214. The ruling in Speer s case was merely to the effect that the employer is not relieved from liability when the employee, whose negligence causes» the injury, occupies the position of quasi-master as to his injured coemployee. In Bains case it was held, two Justices presiding, that “Although persons were employed by the same master, yet where one of them was employed as a blaster for the purpose of removing certain rocks on the master’s property, and alone had charge of the work of blasting, and the other had nothing to do with it, but was employed as a woodworkman in the foundry o£ the master, they were not fellow-servants in the legal sense of the term.” In Krogg’s case it appeared that Gabbett was the-general manager and the highest officer of the defendant railroad companies in Alabama; “that he had charge of the running of the roads, the control of the employees, and the care of the track.” Mr. Justice Blandíord, in delivering the opinion of the court, cited 42 Ala. 672, 61 Id. 554, 67 Id. 18, and said: “In these cases that court seems to rule that Gabbett is not a fellow-servant with Krogg, the engineer, and we think that view is correct. . . And this was the ruling of the Supreme Court of the United States in Hough v. Texas Pacific Railroad, 100 H. S. Rep. 214. The decisions of this court [Supreme Court of Georgia] have been uniform that a fellow-servant is one employed about the same work with the servant injured, and whose negligence caused the injury to the servant complaining. See 30 Ga. 146, 150, in which Judge Stephens takes a philosophical view of this question, and ruled as this court did in Bain v. Athens Foundry, decided two terms ago, 75 Ga. 718; but the case cited in 100 U. S. is a learned and able opinion, and is absolutely decisive of this question. If any doubt formerly existed as to who were fellow-servants, that decision resolves the doubt.” While it was announced in Krogg’s case that a fellow-servant is one employed about the same work with
In Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, where it was held that a fireman on a locomotive and a track-hand on a tramroad were fellow-servants, Mr. Justice Lumpkin, in discussing the cases of Cooper v. Mullins, Bain v. Athens Foundry and Krogg v. Railroad Co., said that nothing contained in those cases conflicted 'with the rule he announced for determining who are fellow-servants, viz., that the test of fellow-service is whether or not employees are alike subject to direction and control by the same general master in the same common undertaking, citing Wood’s M. & S. §435; which rule was but recently followed-in Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, and Hamby v. Union Paper-Mills Co., ante, p. 1. This same test was adopted in Prather v. Railroad Co., 80
The “different-department limitation,” or the “doctrine of consociation,” to the effect that the fellow-servant rule is not applicable where the servant injured is employed in a department of the general service which is separate and distinct from that of the servant whose negligence caused the injury, is not recog
“Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety, when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because tile person suffering does not stand toward him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied. The exemption of the master, therefore, from liability for the negligence of a fellow-servant, does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into different departments can not create that liability, when it does not arise from express or implied contract, or from a responsibility created by law' to third persons and strangers, for the negligence of a servant. . . The responsibility which one is under for the negligence of his servant, in the conduct of his business, toward third persons, is founded on another and distinct principle from that of implied contract, and stands on its own reasons of policy. The same reasons of policy, we think, limit this responsibility to the case of strangers, for whose security alone it is established. Like considerations of policy and general expediency forbid the extension of the principle so far as to warrant a serv
Applying the law as we conceive it to be to the facts of the-present case, the engineer of the Brush Electric Light and Power Company and Wells, its lineman, being subject to direction and control by the same general master, in the same common enterprise, were fellow-servants, though employed in different departments of duty and so far removed from each other that one could in no degree control or influence the conduct of the other; and, granting that Wells was killed by reason of the-negligence of the engineer, in failing to give the signal before the electric current was turned on, the defendant company was not. liable to Wells’s widow for his homicide. The verdict being-contrary to the law as herein announced, the trial judge erred in refusing to grant a new trial.
Judgment reversed.