113 Ga. 130 | Ga. | 1901
Tire error assigned in the present bill of exceptions is the granting of a nonsuit. The petition alleged that the plaintiff was an employee of the railway company in the capacity of a section hand, and that, while engaged with three other such bands, who were his fellow-servants, in placing a hand-car upon a track of the company, one of them, named Pool, negligently “ jerked up ” a corner of.the car and thus caused the “plaintiff’s corner” to fall suddenly to the ground, in consequence whereof he sustained serious physical injuries. At the trial the plaintiff was introduced as a witness in his own behalf, and testified to facts warranting the conclusion that he was injured in the manner, alleged. On cross-examination he testified: “ M. D. Smith was foreman of that section. He was not with us the day I was hurt. I was in charge of the work. I was acting foreman that day. I took Mr. Smith’s place.” In response to questions asked by his own counsel, the plaintiff further testified in this connection: “ The section boss went off Saturday night and came back Monday morning. The accident happened Monday morning. He came up on ten o’clock train Monday morning. After he ate his dinner, he came on and took charge of the work. When he left, he just said go ahead with the work where you are at until I come back. Said to go to work where we were. I don’t know that he told me any more particu
Counsel for the defendant in error insisted here that the case of the plaintiff fell to the ground, because of a failure on his part to prove either the alleged negligence of Pool, or that he was the plaintiff’s fellow-servant. As to the first point, it is enough to say that a reading of the evidence will show clearly it is not well taken. Indeed, it was not stressed by the attorneys for the railway company. Their main contention was, that uffder the testimony of the plaintiff himself, he was, at the time he was hurt, not a fellow-servant of Pool, but really his “boss,” having taken the place and assumed the duties of Smith, the section foreman. In other words, their position was that Chandler was, on the occasion referred to, a vice-principal, and, as such, represented the company in assuming control of the work in which he and his colaborers were engaged. In view of the evidence adduced at the trial, we are not prepared to say whether Smith himself was, or was not, a vice-principal, for it was not shown exactly what relation he sustained towards the plaintiff and his fellow-workmen. Granting, however, for the sake of the argument, that Smith was, as claimed, a vice-principal, we think the testimony, considered as a whole, would have justified the jury in concluding that he was not, during his absence, superseded by the plaintiff in that capacity, but that the. latter really retained his customary relation as a fellow-servant of Pool and the other track hands. Certainly the jury would not have been -constrained to find that Chandler had authority from the company to act as section foreman during the temporary absence of Smith. Indeed, it does not appear that, even if Smith contemplated that Chandler should assume his duties and responsibilities, he had authority from the' company to constitute Chandler its vice-principal. Looking to the facts to which the plaintiff testified, rather than to the mere statements of his conclusions therefrom, it is to be gravely doubted whether Smith really intended to place Chandler in authority over the hands with whom he was ordinarily engaged at work in the ca