140 Ga. 309 | Ga. | 1913
(After stating the foregoing facts.) While it may be true that as a general rule one of two or more joint tort-feasors has no right of action over against those connected with him in the tort, for either contribution or indemnity, where he alone has been compelled to satisfy the damages resulting from the tort, yet in some cases one who is liable as a tort-feasor because he has failed to exercise due diligence to discover a defect or danger in machinery, appliances, or place where the injured person is required to work, and has been compelled to pay damages for injuries growing out of the tort, may have a right to recover over against another whose negligence produced or brought about the defect or
The conclusion which we have announced, as to the liability over by one guilty of positive acts which resulted in injury, when another has been held liable in the first instance because of a failure to exercise due diligence in the matter of making inspection, finds support in decisions by other courts. Attention is called to the case of Union Stock Yards Co. v. C., B. & Q. R. Co., 196 U. S. 217 (25 Sup. Ct. 226, 49 L. ed. 453, 2 Ann. Cas. 525). In that case the Circuit Court of Appeals certified the following question: “Is a railroad company which delivers a car in bad order to a terminal company that is under contract to deliver it to its ultimate destination on its premises for a fixed compensation,' to be paid to it by the railroad company, liable to the terminal company for the damages which the latter has been compelled to pay to one of its employees on account of injuries he sustained while in the customary discharge of his duty of operating the car, b-y reason of the defect in it, in a ease in which the defect is discoverable upon reasonable inspection?” Accompanying the question, and for the purpose of illustrating it, was a statement of the facts as follows: “The plaintiff, the Stock Yards Company, is a corporation which owns stock-yards at South Omaha, Nebraska, railroad tracks appurtenant thereto, and motive power to operate cars for the purpose of switching thém to their ultimate destinations in its yards from a transfer track which connects its tracks with the railways of the defendant, the Burlington Company. The Burlington Company is a railroad corporation engaged in the business of a common carrier of freight and passengers. The defendant places the cars destined for points in the plaintiff’s yards on the transfer jrack adjacent to the premises of the plaintiff, and the latter hauls them to their points of destination in its yards for a fixed compensation, which is paid to it by the defendant. The plaintiff receives no part
It will be observed that in the opinion in the case from which the foregoing quotation is taken the Supreme Court of the United States recognized the doctrine that there will be a. final and ultimate liability and liability over in all cases where the wrongful act of the one held finally liable was of a positive and creative nature bringing about the unsafe or dangerous condition from which the injury resulted; and that court makes a distinction between negligence consisting in omission or failure to make proper inspection, and negligence in the performance of positive or creative acts, as where one creates .or maintains the unsafe or dangerous condition causing the injury. It did hold in the case with which it was dealing that there was no liability over, but based the holding on the ground that the negligence of the parties was of the same character. “Both the railroad company and the terminal company failed by proper inspection to discover the defective brake.” And if, upon a trial of this case, it should appear that the negligence which resulted’in the injury for which the plaintiff was held liable in the first instance did not consist of positive and creative acts upon the part of the defendant in the present ease, but grew out of a failure to inspect merely, and the duty of inspecting was one resting both upon this plaintiff and this defendant, then, both • having been guilty of the same or like negligence, there would be no liability over so as to make the company now sued indemnify the one held liable in the first instance. The doctrine of liability over on the part of one who creates or maintains an unsafe and dangerous
We do not think that the plaintiffs ease should have been dismissed upon general demurrer, but the case should be tried and the plaintiff be permitted to show, if it can, by competent evidence, that the proximate cause of the injury to the plaintiff’s employee, for which it has already been mulcted in damages, was the result of'positive wrongful acts and negligence upon the part of the defendant in the instant case, and that the plaintiff had not participated in these wrongful acts and was not a mere joint tortfeasor in the sense that it had been guilty with the defendant of the same or like negligence which resulted in causing the fatal injuries.
Judgment reversed.