92 Ga. 631 | Ga. | 1893
1. The plaintiff’ brought an action for personal injuries against the Chattahoochee Brick Company and Georgia Penitentiary Company No. 2, as joint tort-feasors, which resulted in a verdict in his favor against the company first named. One ground of the motion for a new trial is, that the court erred in charging as follows : “ There is no evidence warranting a finding against the Penitentiary Company No. 2, and I confine your attention to the case as developed in reference to the Chattahoochee Brick Company.” If it appeared from the evidence set forth in the record that the penitentiary company would be liable to contribution to the brick company, the complaint as to the charge quoted might be meritorious ; but under the undisputed facts of this case, it is clear that there is no such liability on the part of
2. Counsel for the plaintiff in error sought to apply to this case the well-settled rule of law that a servant who voluntarily, and without objection, goes into a place which he knows to be dangerous, cannot hold his master liable for injuries to himself thus sustained. 'This rule, in our opinion, has no hearing upon a case like the one now under consideration. The plaintiff was 2, convict, and according to the evidence, his movements were absolutely controlled and directed by a guard, or “ boss,” whose orders he was compelled to obey. This guard had and exercised over him the most complete dominion and authority. The plaintiff’s position, so far as the power of the guard was concerned, was more that of a slave than a mere servant, and it is .apparent that he dared not disobey any of the guard’s commands. According to the evidence introduced in the plaintiff’s behalf, and which the jury evidently believed, he was forced by the guard to expose himself to the danger resulting from the explosion of the dynamite blast. The evidence for the defence was directly and emphatically to the contrary, but we are constrained to accept as correct the finding of the jury. Ordinarily, where a servant is ordered by his master to engage in a work, or go into a place, which the servant knows to be dangerous, the latter is not bound to obey the order, and if he does so with full knowledge of the impending peril, the master may not in law be liable for the consequences. In the present case, however, the plaintiff had no election. When the guard said go, he was obliged to go, and there is no hardship in compelling a
3. The record discloses that the convicts hired by Penitentiary Company No. 2 to the Chattahoochee Brick Company were under the general charge of a “captain” appointed by the governor, but it also discloses that these convicts, including the plaintiff, were put to work under the immediate control and supervision of another person who was employed and paid by the brick company, and that all the convicts were peremptorily required to obey the orders of this person. This being so, we can conceive of no reason in law or justice why this corporation should not be held liable to the plaintiff- for injuries resulting directly from the unlawful conduct of its own employee in forcing the plaintiff- to expose himself to mutilation from the dangerous explosive which was being used m the company’s service. The mere presence of the “captain” at or near the scene oi the calamity, even though he may in a sense have been a State official, certainly cannot relieve the brick company of responsibility for the tortious and wrongful conduct of its own servant. It is entirely immaterial whether it was or was not lawful for these convicts to be thus placed under the control and management of the brick company and its bosses. This company surely will not be heard to say that, although it injured the plaintiff through the grossly improper conduct of its own employee, it is not liable because it was unlawful to put the plaintiff- under this employee’s control. To do this would be to allow the company to avail itself of its own misconduct in doing one wrong in order to shield itself from the consequences of another wrong still more grievous and unlawful.
4. As already intimated, the evidence was conflicting. If the jury had believed the testimony of the defend