35 Ga. App. 733 | Ga. Ct. App. | 1926
This was a suit for damages for a personal injury. General and special demurrers to the petition were sustained, and the plaintiff excepted. The suit was-by one as next friend for the person injured, but hereinafter the latter will be referred to as the plaintiff. The petition alleged: The plaintiff, Fisher, was employed by the defendant as a helper to its boiler-maker, John
It is clear that the plaintiff can not recover because of the worn condition of the socket retainer. The petition fails to show that this condition was the proximate cause of the injury. Indeed, the contrary affirmatively appears.
The injury occurred when the boiler-maker struck the reamer with the hammer, and the question is, does the petition show negligence in this act? It is not alleged that the hammer was defective, nor that there was any defect in the constituent material of the reamer. It is merely averred that they were both made of hard steel and that Johnson struck them together, when, from his experience, he knew or ought to have known that the “sharp contact of said steel surfaces” was likely to cause a piece of steel to chip off and fly into the eye of the plaintiff, about two feet away. Under the second specification the only negligence complained of is an act—the act of another employee. The defendant being a railroad company, the fellow-servant doctrine is inapplicable, and the plaintiff is not to be denied a recovery merely because he is complaining of an act of his fellow servant. See Civil Code (1910), §§ 3129, 4413. But it is necessary, of course, that he should allege negligence. If, after the futile attempt to remedy the situation with his hand, it was proper for Johnson to use the hammer in the manner shown, then certainly there was no negligence in his doing so. It is not alleged that the blow was accompanied with any considerable force, except that the contact was sharp; and while it is averred that the usual method of placing the reamer into the socket was by pressure with the hand, there is nothing to show that the stroke with the hammer was not a proper resort after the usual method 'had failed. The petition does charge in general terms that Johnson’s act was negligent, but it is claimed to have been so only because the tools were both of highly tempered steel and because Johnson, as a machinist of long experience, knew or should have known that the sharp contact of the steel surfaces was likely to cause a piece of steel to chip off and fly into the plaintiff’s eye. If the act was proper under the circumstances, it could not be negligent merely for the reasons stated. An act is not necessarily negligent because it may be attended with danger. Work performed by a person in a machine
Johnson was not the alter ego of the company although Fisher was only his helper. TJnder the allegations, especially those contained in the amendment, it appears that the two were engaged in the joint act of adjusting the appliance. The plaintiff was holding the air-motor and knew that Johnson was about to strike it with the hammer. Such knowledge is to be inferred, since there is no allegation to the contrary and since the petition avers merely that the plaintiff had no means of knowing or anticipating the force with which the reamer would be struck. The allegations of the amendment would seem to strengthen the conclusion that the plaintiff never intended to allege that the stroke with the hammer was in itself an improper act on the part of Johnson, and, as we have already pointed out, it is not alleged that the blow was attended with undue or unnecessary force. „
Johnson’s act not appearing to be negligent, the defendant could not be held liable for the injury resulting therefrom. But even assuming that the petition sufficiently alleges that the blow with the hammer was improper, it has been seen that the amendment discloses that the plaintiff was a party thereto and he could not recover from the master for an injury resulting from an unexpected and unintended use of the appliance to which he was a party equally with his fellow servant. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438). There is no similarity between the present case and Maloy v. Port Royal R. Co., 97 Ga. 295 (22 S. E. 588), nor does it appear that there had ever been
See further, in this connection, Reid v. Central R. Co., 81 Ga. 694 (8 S. E. 629); Ga. R. Co. v. Nelms, 83 Ga. 70 (9 S. E. 1049, 20 Am. St. R. 308); East Tenn. Ry. Co. v. Perkins, 88 Ga. 1 (13 S. E. 952); McCain v. Seaboard Ry. Co., 34 Ga. App. 86 (121 S. E. 876). Since the court was correct in sustaining the general demurrer, it is not necessary to examine the special demurrers.
Judgment affirmed.