19 Ga. App. 681 | Ga. Ct. App. | 1917
The petition is substantially as follows: The defendant owns, controls, and operates a line of ships. On June 29, 1916, plaintiff, as a laborer in the employment of the defendant, was helping to load a certain ship. The gang of laborers with which he was working were under a foreman, and were loading lumber, 3x10, thirty feet long, on the upper deck toward the stern of the ship, against number 4 hatch on the port side, and were storing the lumber so that it would come in contact with the forward end of the hatch on its left-hand side. The lumber was heavy, each piece weighing about 800 pounds. There were nine men in the gang of laborers in which plaintiff was working, but, under a rule of the company and in this instance at the direction of the stevedore, the gang were split, five men were put to work on the other side of the ship, and the remaining four men, of whom plaintiff was one, were put to work loading the lumber on the port side of the ship. When they were loading the lumber and as they were putting a heavy stick of the lumber up on the top tier in accordance with the rules of the company, plaintiff and Joe Barn-well raised the end next to the hatch, up on the tier, and in ac-' cordance with the said rule, while plaintiff held the end up, Barn-well left him and went "to the other end to assist the other two men in raising that end on the tier. The rule of the company in regard to storing this lumber was in substance as follows: “As many men as are necessary lift one end of the lumber up on the tier. This end is to be held in place by a laborer or laborers, and as many men as are necessary lift the remaining end upon the tier.” In- this instance two men were not strong enough to lift the other end, and it became necessary under the said rule of the company, for Barnwell to go to the other end to assist in lifting it. This action, under the said rule, left plaintiff to hold the end which had been placed up on tier. As the lower end of the lumber was being lifted by the three men the strain on plaintiff became so great that he was unable to hold his ■ end of the lumber on the tier, and it fell off, striking him and knocking him into the open hatch. He did not know the lumber was too heavy for him to hold. He was earnestly engaged in his work, which required the concentration of all of his faculties, and he assumed that the defendant would not place him in a dangerous position. When it became apparent to him, in the
This ease is clearly distinguishable from the 'case of Brown v. Rome Machine & Foundry Co., 5 Ga. App. 142 (62 S. E. 720). In the Brown case one of the three men carrying the ladle was called- away by an officer of the company, and Brown and his co-employee were directed by the alter ego of the company to proceed, and, without the help of the employee so called, away, the load carried was too burdensome for the two to carry. In the instant case the rule pleaded required that a sufficient number of men stand at each end of the timber to manage the weight. The plaintiff and Barnwell complied with the rule and were holding one end of the lumber. Barnwell, a fellow servant, despite the rule, and' with the knowledge and not against the advice of the plaintiff, violated the rule and left the plaintiff to hold the lumber, while he volunteered to assist other coemployees at the other end of the lumber. The facts set forth in the petition do not show that the injury to the plaintiff is attributable to the negligence of the defendant. The- court did not err in sustaining the general demurrer.
Judgment affirmed.