18 Ga. App. 544 | Ga. Ct. App. | 1916
Through his next friend, Horace Á. Sewell, a minor, brought a joint suit for personal injuries against the Southern Eailway Company, a common carrier, domiciled without the State of Georgia, but running trains therein through the county of Carroll, where it had an agent and maintained an agency and place of business, and against Malcolm G. Waitt, a conductor of said railway company, in charge of - the passenger-train, from ■ which the plaintiff fell and was injuyed on January 14, 1914. The plaintiff alleged, in brief, that on the day named he went to a station- on the line of said railway company at Eruithurst, Alabama, for the purpose of boarding a passenger-train of said company, funning from Atlanta, Georgia, by said station, to Anniston, Alabama; that, being informed by the agent of the company that no tickets were sold for this particular train at this station, as it was a flag station only, but that he might become a passenger and pay his fare on the train without additional charge because of his failure to secure a ticket, he 'remained there until the train approached the station and stopped to discharge and receive passengers ; that he approached the 'train from the side where he had previously boarded trains at this station, but, finding the vestibule doors closed on that side, he immediately ran around the rear of the train, in the effort to reach-the door open on that side before the train commenced to move, but before he reached the steps and entered the train it started off, and, in his anxiety to continue his journey, he seized the hand-hold, placed on each side of the steps to enable passengers to enter the car, and undertook thus to board the moving train; that when too late to safely relinquish his hold and alight on the ground, he discovered that the vestibule doors, where he was endeavoring to enter, were fast closed, and he hung on in desperation, until ultimately, from cold and fatigue, some minutes thereafter, his grip relaxed and he fell to the grottnd while the train was in rapid motion and was seriously injured; that while he was hanging to the vestibule doors a number of passengers on the train, including one Will Gentry, notified the porter, the flagman, the ticket collector, the special conductor in charge of the rear coach of the train (who were unknown to the plaintiff by name or otherwise), afld the said Malcolm G. Waitt, the conductor of the train, whose duty it was to control the running and operating of the train, of the dangerous position in which
The petition was demurred to generally by the Southern Railway Company; and a special demurrer, on the ground that an allegation therein as to the 'expense incurred for medical treatment, etc., was not sufficiently definite and full, was likewise filed. The plaintiff struck from his petition all reference to hospital expenses, and the court thereupon overruled the general demurrer. The defendant Waitt interposed the same demurrer, with the additional ground that from the allegations of the petition it appeared that the city court of Carrollton had no jurisdiction of him, but that the superior court of Fulton county alone had such jurisdiction. This demurrer was likewise overruled.
The Southern Railway Company filed a petition for removal to the Federal court, insisting that no cause of action was set out against Malcolm G. Waitt individually, as no acts of misfeasance on his part were alleged, sufficient to charge him individually with
The trial of the case resulted in a verdict for the defendants. A motion for a new trial was made by the plaintiff and was granted by the court. The motion for a new trial was based upon the general grounds, and also upon several special grounds, in which it was contended that the trial judge, in his charge to the jury, omitted to instruct them sufficiently as to the degree of care which the defendants owed to the plaintiff, and also to instruct them specifically touching the alleged negligence in permitting the plaintiff to remain without succor for such a long period of time where he had fallen from the moving train. It was also complained that the court erred in admitting certain testimony from the engineer of the defendant company, touching a statement made to him by the conductor as to the time when the plaintiff fell from the train and when notice of his perilous position was brought to the attention of the said conductor.
The defendants separately excepted to the grant of the motion for a new trial, as well as to the overruling of their demurrers, and the two cases are considered together, inasmuch as they raise the identical points, with the exception of the question of removal to the Federal court presented by the Southern Railway Company.
“The wrongful acts of a servant may render him personally liable to a third person injured thereby. The earlier cases which are still adhered to in many jurisdictions limited the servant’s liability to. his acts of misfeasance as distinguished from nonfeasance, but this distinction has been repudiated in some States and the servant held liable for acts of nonfeasance as well as misfeasance.” 26 Cyc. 1543 (5). See also 2 Cooley on Torts, 1171. The following rule is laid down in 20. Am. & Eng. Enc. Law, 52: “The servant is not, in general, liable to third persons for his own nonfeasance in the course of his employment. If he neglects to perform a duty which the master owes to third persons, the remedy is against the master and not against the servant. The servant’s liability under these circumstances is solely to his master, there being no privity between him and such third persons. Where, however, the servant is guilty of actual misfeasance or tort, resulting in injury to a third person, the servant as well as the master will be liable.” The distinction between nonfeasance and misfeasance as affecting the liability of an agent to third person is clearly stated in 2 Clark & Skyles on the Law of Agency, 1299, as follows: “As has been stated above, there is a distinction between nonfeasance and misfeasance or malfeasance; and this distinction is often of great importance in determining an agent’s liability to third persons. By reason of some of the cases failing to clearly notice this distinction there has been some confusion in the decisions on this point. In this connection, nonfeasance means the total omission or failure of an agent to enter upon the performance of some distinct duty or undertaking, which he has agreed with his principal to do; misfeasance means the improper doing of an act which the agent might lawfully do, or in other words, it is the performing of his duty to his principal in such' a manner as to infringe upon the rights and privileges of third persons; and malfeasance is a doing of an act which he ought not to do at all.” It is said further by the same authority: “If an agent undertakes to perform certain acts for another and he refuses or fails to enter upon such performance, it is a nonfeasance; but if he once begins the performance of such acts and in doing so fails or omits to do
If nonfeasance be held to apply only to cases where the agent fails to enter upon the performance of his contractual obligations, and not the cases where he has in fact entered upon such performance but neglected his duties in some respects, and thereby injury or damage results, the confusion as to the meaning of these two words in cases like the one under review would not arise. 2 Clark & Skyles on the Law of Agency, 1303. The rule laid down in 31 Cyc. 1559 appears to us to furnish a test for determining whether or not an agent or servant may be held responsible to a third person for an injury resulting from his failure to perform some duty which is required by his obligation to his master. “An agent is liable to third persons for his own torts in like manner as other persons, his liability being neither increased nor decreased by the fact of his agency. A distinction exists, however, between the liability of an agent to third persons for nonfeasance, or the breach of a duty owed only to his principal, and his liability for misfeasance or malfeasance, or the breach of a duty owed to third persons. An agent is not responsible to a third person for injury resulting from nonfeasance, meaning by that term the omission of the agent to perform a duty owed solely [italics ours] to his prin
Special attention is directed to the statement that while an agent is not responsible to third persons for injury resulting from nonfeasance, the meaning of the term “nonfeasance,” in this connection, is confined to the omission by the agent to perform a duty which he owes solely to his principal by reason of his agency. In other words, if the injuries arise on account of his failure to perform a duty which he has undertaken to perform by virtue of a contract with his principal, but which nevertheless (when once so undertaken) involves obligations on his part to third persons or to the public generally, he must perform the duty, which is not in that case solely to his master, in such a way that injury may not result to third persons on account of negligent, reckless, or wanton failure on his part to carry out and perform the duties he has so undertaken to perform. For instance, in the case under consideration, the conductor was under contract to operate the train of the railway company between certain points on its line, on certain days or during certain periods. Had he failed altogether to take charge of the train on any particular day or date as required by Ms contract with the railway company, and in consequence of his failure to perform his contractual obligation the train had departed on its journey in charge of some flagman or other underling, through whose incompetency injury resulted to passengers thereon or to the general public, or if, on account of a breach of his contract, the departure of the train was delayed and damage thus resulted to any patron of the railway company, the persons injured would have no right of action against him, but the master alone might call Mm to account for the breach of his contract. He would be guilty of nonfeasance, in that he had failed to perform a duty which he owed solely to the master; that is, the duty of running and operating the train of the master in accordance with the con
The railway conductor in the case under consideration was under a duty solely to his master until he actually took charge of one of the railway trains of the master and thereby began to operate it for the master; but thereafter he owed a duty to the general public as well as to other employees and passengers on the train, and even to trespassers upon the train or on the track, under some circumstances. While running the train the conductor was in the performance of a duty which exacted from him a due regard for the rights and safety of the public; and it can not be said that he would incur no personal or individual liability, if, on account of his failure to perform his duty towards the general public, injury resulted to one of that public, even though the injured person was at fault. It was alleged, and there was some evidence to show, that after the discovery of the plaintiff’s presence in a perilous position, notice of the fact was brought home to the conductor in charge of the train, and the conductor failed either to make any effort to stop the train or to open the vestibule doors and thus prevent the consequences which ensued to the plaintiff. It is true, the plaintiff voluntarily assumed the dangerous position in which he was found, and neither the railway company nor the conductor could have been held liable for any injury to him resulting from his action in placing himself in such a position until the fact of his presence was discovered, but then, if either through wanton negligence or from a careless disregard for his safety^ nothing was done to remove him from his place of peril, which would measure up to the standard of ordinary care, both the railway company and its conductor could, be held liable. In Southern Railway Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191), the Supreme Court held: “An agent is not ordinarily liable to third persons for mere nonfeasance. Kimbrough v. Boswell, 119 Ga.
The doctrine that where one knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk amounts in itself to a failure to exercise ordinary care and diligence for his own safety, he can not recover therefor although the injury be in part attributable to the negligence of the defendant (City of Columbus v. Griggs, 113 Ga. 597, 38 S. E. 953, 84 Am. St. R. 257), we do not think is exactly applicable (or at least is not controlling) in the case finder consideration. In the case last cited the deceased lost his life in attempting to travel on a dark night over a certain street rendered unsafe by reason of certain work being therein done by a railway company by the permission of the city, there being full knowledge of the condition of the street and of the danger in attempting to travel the same on the part of the deceased, and no excuse or emergency existing which constrained him to attempt its passage. There, notwithstanding the negligence of the city with reference to the street, the Supreme Court held that no recovery was authorized.
The pleadings in this case plainly alleged joint liability, and, measured by the rule laid down in Chesapeake & Ohio Ry. Co. v. Dixon, supra, that “when conciirrcnt negligence is charged, the controversy is not separable, and as the complaint in this case, reasonably construed, charged concurrent negligence, the court declines to hold that the State courts erred in retaining jurisdiction,” it is evident that the trial judge did not err in refusing the petition for removal. “A defendant has no right to say that an action shall be several which a plaintiff elects to make joint.” Louisville &c. R. Co. v. Ide, 114 U. S. 52 (5 Sup. Ct. 735, 29 L. ed. 63).
/ Viewing the case as a whole, we see no reason to set aside the judgment granting the motion for a new trial.
Judgment affirmed.