12 S.E.2d 371 | Ga. Ct. App. | 1940
1. Negligence of a fellow servant in the performance of his duties is one of the ordinary risks of the employment assumed by other servants of the common master.
2. In a suit by a servant for injuries arising from the negligence of the master in failing to comply with the duty imposed on him to exercise ordinary care in the selection of other servants engaged in the same enterprise, and not to retain them after knowledge of their incompetency, in order that the injured servant may recover it must appear that the master knew or ought to have known of the incompetency of the other servants, and also that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.
3. Where the plaintiff is placed in a position of peril through the negligence of the defendant and is injured in endeavoring to extricate himself therefrom, the plaintiff is not guilty of negligence barring a recovery, as a matter of law.
The plaintiff alleged that his injuries were caused by the following joint and concurring acts of negligence of the defendants: (a) J. W. Foughner violated his duty to the plaintiff in hiring T. J. Foughner as a fellow servant when he then knew that T. J. Foughner was not skillful, careful, or competent, "nor had he passed the proper legal examination required by the City of Savannah in order to carry out work of a plumber as he was at the time and place" when the plaintiff was injured. (b) J. W. Foughner negligently failed to issue rules for the regulation of his employees. (c) J. W. Foughner was negligent in not providing a safe place to work. (d) J. W. Foughner was negligent in retaining T. J. Foughner "as a plumber who was competent and who had been examined and had otherwise complied with the law of the City of Savannah." (e) Because of the negligence of T. J. Foughner "in not using reasonable care and circumspection in the manner and at the time herein set out."
The defendants demurred generally to the petition. The judge sustained the general demurrer and dismissed the action, and the plaintiff excepted.
1. Negligence of a fellow servant in the performance of his duties is one of the ordinary risks of employment assumed by other servants of the common master. Shields
v. Yonge,
2. "The master is bound to exercise ordinary care in the selection of servants, and not to retain them after knowledge of incompetency." Code, § 66-301. However, before recovery can be had *808
against a master for negligently employing an incompetent fellow servant it must appear that the master knew, or by the exercise of due diligence should have known, of the incompetency at the time of the employment, or else that the master negligently retained such fellow servant after he was fairly chargeable with knowledge of such incompetency. Gunn
v. Willingham,
Even though it be conceded that it appears from the petition that J. W. Foughner knew, at the time he hired T. J. Foughner and at the time of the injury to the plaintiff, that T. J. Foughner was not a skillful, careful, and competent employee, and that it appeared he had not complied with the ordinance as to hiring an employee who had stood the required examination by the ordinance, it does not appear from the allegations of the petition that the plaintiff did not know of the incompetency, and that he could not have discovered such incompetency by the exercise of ordinary care on his part, or that he did not have equal means with J. W. Foughner, the employer, of knowing of such incompetency. See Story v. Crouch Lumber Co.,
The question as to whether T. J. Foughner was a vice-principal was not made in this case. It is alleged that the plaintiff, a plumber's helper, was told by the defendant employer to accompany T. J. Foughner, assist him in performing certain work, in the performance of which the plaintiff was injured, and that the employer stated to the plaintiff that he was merely to accompany T. J. Foughner and "carry out his directions." However, these allegations were not made for the purpose of charging that T. J. Foughner was not a fellow servant in the performance of the work, during the performance of which the plaintiff was injured, but were made for the purpose of showing that T. J. Foughner was an incompetent servant and that the defendant employer knew this when he directed the plaintiff to accompany T. J. Foughner and assist him on this particular job. Furthermore, the fact that the negligent servant had the right to direct the performance of the plaintiff's work does not make him anything more than a fellow servant. Hamby v. UnionPaper-Mills Co.,
3. As to T. J. Foughner, the employee who was with the plaintiff, the petition set out a cause of action. The petition alleged that T. J. Foughner improperly and without warning began unscrewing the drain pipe plug while the plaintiff was directly underneath it, and that in order to avoid the potash or lye, which both men knew was in the pipe, from being spewed forth through this opening in the pipe into the plaintiff's face and eyes, he jumped and broke his arm. It appears from the petition that T. J. Foughner knew of the existence of the potash and lye in the pipe, and was aware of the position of the plaintiff and that he would be exposed to the contents of the pipe upon the removal of the drain plug. It appears also that the plaintiff knew of the existence of the lye and potash in the pipe, and that it would be discharged from the pipe if T. J. Foughner continued what he was doing. It appears that *810 the plaintiff was put in imminent danger of serious injury by the act of T. J. Foughner, and that the plaintiff's injuries were sustained as the result of his attempting to escape the consequences of such act. This act of T. J. Foughner was charged as negligence. This is true notwithstanding that the potash and lye water may not have been actually discharged from the pipe and fallen on the plaintiff.
It is contended that the plaintiff was injured by reason of his own negligence, for failure to exercise ordinary care for his own safety in jumping from the ladder. A demand for extraordinary diligence in emergencies wholly excuses the plaintiff's negligence where the emergency entirely obscures that due care which ordinarily would impair an exercise of the instinct of self-preservation. Walton v. Georgia c.Ry. Co.,
It follows that the judge properly sustained the demurrer of J. W. Foughner, but it was error to sustain the demurrer of T. J. Foughner, and to dismiss the action in its entirety.
Judgment affirmed in part and reversed in part.Sutton and Felton, JJ., concur. *811