9 Ga. App. 752 | Ga. Ct. App. | 1911
The suit was for damages alleged to have resulted under the following circumstances: The plaintiff alleged, that he was an employee of the defendant company, in the capacity of a fireman, and, at the time he was injured, was working on its railroad. The special work in which he and those associated with him were engaged was filling in dirt at the end of a trestle. There were two stationary engines on a fiat car, and they were used in pulling a plow over the flat cars to scrape dirt from them, which had been placed there to fill in the trestle. The steam used in the operation of those stationary engines was furnished by steam-pipe connection with the locomotive engine on which he was injured. It was a part of the duty of the petitioner to run the stationary engines. líe turned on the steam at the locomotive and started over to the stationary engines for the purpose of starting them. As he started from the locomotive, a pipe, connecting the locomotive and the stationary engines, blew out, and he was thrown to the ground some distance below and injured. This pipe was alleged to have been defective in certain particulars mentioned. The plaintiff alleged that he was free from fault, and did not know of the de
The undisputed evidence on the trial showed that the work of filling in the trestle in question was being done by the Atlantic & Birmingham Construction Company, a corporation organized by a judgment of the superior court under a contract wherein the construction company agreed with the' Atlanta, Birmingham & Atlantic -Railroad Company (which will hereafter be referred to as the railroad company) to construct and fully complete its line of road from a point near AYarm Springs, in Meriwether county, up to the city of Atlanta, but not into the city itself. The injury occurred at a point at which the construction company, under its contract, was bound to construct the railroad. The plaintiff, at the time of his injury, was an employee of the construction company, and not of the railroad company. He was engaged in and about the work of the construction company, and was not doing any work for the railroad company. His contract of employment was with the construction company. He was paid by the construction company for his services, and the defendant company insisted upon -its non-liability, upon the ground that he was in the employment of an independent contractor, and suffered injuries as a consequence of the negligence of the independent contractor. The railroad company exercised no supervision or control over him or his associates in and about the work of the construction company, and reserved the right only to supervise the work of the construction company to the extent of seeing that it properly complied with its contract. As to all of the other essential ingredients of the case it is assumed, for the purpose of determining this writ of error, that the evidence, otherwise than as above stated, would have justified a recovery for the plaintiff. The question then is whether the employer, under the circumstances stated, was liable for the conduct of the independent contractor.
Section 4414 of the Civil Code (1910) provides that “The employer generally is not responsible for to.rts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.” It is insisted, notwithstanding the provisions of this section, which would seem to he conclusive of the.non-liability of the
It is perfectly apparent, from reading the contract, which is found in the record, that the construction company occupied, relatively to the railroad company in question, the position of an independent contractor. The railroad company retained no control over the building of the railroad, except to see by its appropriate officers that in the construction of the railroad the contract was complied with; and the mere fact that it stipulated that the road was to be built according to certain plans and specifications, and to the satisfaction of the railroad company’s engineer, did not change the relation, as -to third persons, or establish any duty between the railroad company and employees of the construction company. See Atlanta & Florida R. Co. v. Kimberly, supra; Louisville & Nashville R. Co. v. Hughes, 134 Ga. 75 (67 S. E. 542). See also Lampton v. Cedartown Company, 6 Ga. App. 147 (64 S. E. 595).
In the ease last cited, Chief Judge Hill says (p. 149) : “The test has never been better expressed than by Wood in his work on Master and Servant (§ 593) : ‘When a person lets out work to an
AVe do not find, therefore, any authority for the proposition that a railroad company occupies a position different from that which' would be occupied by any other employer relatively to an independent contractor, and it is only necessary to read section 4415 of the Civil Code (1910) ‘to see tlmt the. facts of the present case do not bring the employer in this case within any of the exceptions named in that section. Upon the undisputed testimony in the ease, the non-liability of the defendant company is apparent, and the court did not err in directing a verdict for the defendant.
There were a number of exceptions to rulings excluding evidence, but since the evidence admitted could not have changed the result in any way, it is unnecessary to discuss them, further than to say that no error was committed in excluding evidence.
Judyment affirmed.