7 Ga. App. 268 | Ga. Ct. App. | 1910
Whitfield sued for damages on account of personal injuries received by him while employed by the defendant company in the State of Tennessee. His petition makes substantially the following ease: He was employed as a common laborer on a work-train of the defendant, and on the day when his injuries were received he was at work in a crew loading rails on a flat car, under the direction and control of a foreman or boss. The work of loading rails is very dangerous, and requires the direction of an experienced foreman or boss. The point where the plaintiff and his fellow workmen were loading the rails on the cars was in a narrow cut, the sides of which were very close to the cars; and, by the direction of the foreman, the plaintiff was at one end of a rail, performing his part of the work of lifting, and placing the rail upon the car, and had been so engaged all of that day, being assisted by an ample number of men at his end of the rail to handle the rails expeditiously and with safety to all. About the middle of the day and while so engaged in his work, he was ordered to remain at the end of a certain rail, and some of his fellow servants, engaged in the same work, at the same time and place, were negligently shifted by the foreman, from the end of the rail where the plaintiff was at work, towards the other end of the rail, to better assist the men
1. Negligence, as a question of fact, is always to be determined by the jury, provided a prima facie case is made out; but whether the allegations of a petition make a cause of action, when their sufficiency is challenged by demurrer, must be decided by the court. The first question that presents itself for our decision is as to the law.which must determine the rights of the plaintiff. The injuries complained of were received in the State of Tennessee, and his right •to recover depends upon the law of that State. He failed to plead any statute of Tennessee relating to the subject, and it will therefore be presumed that the common law defining the relative rights of master and servant is of force in that State. Under the common law one servant can not recover damages from the master impersonal injuries caused by the negligence of a fellow servant. Lay v. N. C. & St. L. Ry., 131 Ga. 345 (62 S. E. 189). We think it clear that the allegations of the petition show that the boss of the crew who was directing the work was a fellow servant. He was serving with the plaintiff and the others in the same work, and his part in that work was not different, in his relation to the master, from that of the others. A workman engaged in the same job with others, although he may have direction of it, is not a vice-principal of the master, but stands on the footing of a mere fellow servant. Shepherd v. Southern Pine Co., 118 Ga. 292 (45 S. E. 220) ; Cedartown Cotton Co. v. Hanson, 118 Ga. 176 (44 S. E. 992). In the case of McDonald v. Eagle & Phenix Mfg. Co., 68 Ga. 844, it is said: “ One of these servants employed in this work is called superintendent, and is alleged to have been at the head of the management of the derrick, etc.; but we do not see that he was such a general superintendent for this corporation as to make it liable as acting through him. On the contrary, the averment only makes him the head of a little job to do that job; and to all intents and purposes a fellow servant." And in the case of Moore v. Dublin Cotton Mills, 127 Ga. 624 (56 S. E. 839, 10 L. R. A. (N. S.) 772), it is held, that "orders in reference to mere matters of trivial detail amounting merely to supervision in the operation of the business
The question as to whether or not the plaintiff was injured by the negligence of a fellow servant is not left in doubt under the allegations of the petition. While it is alleged that the boss was negligent in shifting the workmen from the plaintiff’s end of the rail to the other end of the rail, thus leaving him with an insufficient number of fellow workmen to lift his end and throw it on the car, this act of negligence seems not to have been the proximate cause of his injuries; for he distinctly alleges that the end of the rail next to him was thrown against the car by reason of the negligence of his co-employees causing the rail, without fault on his part, to roll down upon him.
2. But without reference to the question as to whether the injuries received by the plaintiff were caused by the negligence of the boss in the particulars set out in the petition, or the negligence of his fellow servants in throwing the rail on the car as alleged, we think the allegations show that the master is not liable, under §2612 of the Civil Code. This statement leaves out of consideration the mere conclusions of the pleader on the question of negligence. The facts as alleged show that the plaintiff knew, or had equal opportunity with the master of knowing, the danger of attempting to throw the rail on the car without an adequate supply of men for that purpose. It seems to have been a case where the plaintiff simply misconceived the amount of physical strength that was necessary to throw the rail on the car, and on this branch of the case it seems to fall clearly within the principle announced by the Supreme Court in Worlds v. Georgia Railroad Co., 99 Ga. 283 (25 S. E. 646). In that case the plaintiff was required, with other em
• Judgment affirmed.