Massee & Felton Lumber Co. v. Georgia & Florida Railway

143 Ga. 173 | Ga. | 1915

Evans, P. J.

(After stating the foregoing facts.)

1. The effect of the settlement of the engineer’s suit by the railway company, with the consent of the lumber company, is the same as if a werdict had been rendered in favor of the engineer against the railway company. The railway company, having paid the amount of the recovery, seeks in the present action to reimburse itself from the lumber company. Under its contract the railway company assumed all liability for loss or damage that might be caused to persons engaged in operating the log-trains of the lumber company, due to improper train orders given by the railway company to the lumber company for the movements of its log-trains. In order for the railway company to make the lumber company liable over to it for the damages paid to the lumber company’s engineer for injuries received in the collision, it must appear that the collision was the result of the lumber company’s negligence, or that the lumber company contracted to be liable for all injuries resultant from the operation of the lumber company’s cars, caused by the negligence of the railway company. In. the engineer’s suit his injuries were alleged to have been caused solely by the negligence of the railway company. In the present suit no specific charge of negligence is made either against the lumber company or the engineer in the operation of the log-train. A contractual duty is alleged on the part of the lumber company to operate its trains according to such rules and regulations as may be from time to time prescribed by the railway company. One of the general rules required engineers of log-trains to run trains under full control at all times, expecting to find the track occupied by the railway company’s extra trains. In the engineer’s suit it was alleged that he was running his train at the rate of five to six miles per hour, exercising due care and caution in keeping his lookout, and otherwise attending to his duties. In the present suit it is not alleged as matter of fact that a train run as described in the engineer’s suit is not run under full control, and we can not say as matter of law that such is the fact. Neither is it alleged that the log-train was operated otherwise than as described in the engineer’s suit. Taking together all the allegations of the petition, those relating to the general rule, as well as those relating to the specific order that the track would be clear of extra trains at the time of the collision, and the running by the railway company of an extra freight-train without notice, we are of the opinion that the petition does not charge any negligence to the lumber company which would make it liable over to the railway company for the money paid out to the former’s engineer in settlement of his claim for damages. The order of the morning may have been proper at the time it was given; yet, when the railway company subsequently ordered out an extra train without notice to the lumber company, the order became an improper one, and the collision of the two trains may well be attributed to an improper train order. After the morning order was given to the lumber company, advising it that this portion of the railway track would be free'of extra trains until the afternoon, it was the duty of the railway company, if it issued a subsequent contrary order, to communicate the same to the lumber company. When the railway company promulgated its order, it was a continuing permission, as long as it was in existence, for the lumber company to operate its trains upon a track free from extra trains of the railway company. If the railway company issued a contrary order, then the original order became improper, for the reason that it still continued in force just as much as if it had been again promulgated after the contrary order by the railway company was issued. Obviously it would have been improper for the railway companjq after putting on an extra freight-train, to notify the lumber company that no such train would be run. See Massee & Felton Lumber Co. v. Georgia & Florida Railway, 12 Ga. App. 436 (77 S. E. 366).

2. It is further contended that the provision of the contract that the lumber company shall hold the railway company free and harmless from all damages or loss to persons or property of all persons, caused by the operation of the trains of the lumber company on the track of the railway company, is an exemption from liability for any negligent injury to the employees and property o£ the lumber company. We do not think that the parties intended "by this provision, and especially when considered in connection with other provisions of the contract, that the railway company was contracting against liability for its own negligence. It suggests that both parties were mindful of the rule that a chartered railroad company permitting another company to run trains over its railway, and thus to use its franchise, is liable to respond for any damage occasioned by negligence, whether its own or that of its lessee or licensee. Central Railroad &c. Co. v. Phinazee, 93 Ga. 488 (21 S. E. 66). The parties were contracting that if the lumber company should injure persons or property, whether belonging to it or the general public, the lumber company would alone be responsible for such injury. The plaintiff was not looking for protection against its own acts of negligence, as it was against the negligent acts of the lumber company. This provision of the contract was to save the railway company from liability caused by the operation of the lumber company’s trains, and of course no legal liability could occur from the operation of such trains unless the lumber company in their operation was negligent. We therefore reach the conclusion that this-provision of the contract was not intended to be .construed as an indemnity by the lumber company for liability caused by the negligence of the railway company, but rather a covenant that it would be responsible over to the railway company for the negligent operation of its logging-trains on the latter’s track.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.