Atl. Coast Line R. Co v. Knight, 23077.

• Decision Date: 27 November 1933
• Docket Number: No. 23077.,23077.
• Parties: ATLANTIC COAST LINE R. CO. v. KNIGHT.
• Court: Georgia Court of Appeals

48 Ga.App. 53

171 S.E. 919

ATLANTIC COAST LINE R. CO.
v.
KNIGHT.

No. 23077.

Court of Appeals of Georgia,
Division No. 1.

Nov. 27, 1933.

Syllabus by the Court.

1. When a servant enters upon the performance of his contract with his principal and in so doing fails to take reasonable care

in the commission of some act which he should do in the performance of his duty under the contract, and thereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. His liability in such a case is not based on the ground of his agency, but on the ground that he is a wrongdoer and, as such, is responsible for any injury he may cause.

2. A servant is personally liable to third persons when his wrongful act in the course of his employment is the direct and proximate cause of injury to them, whether the wrongful act be one of misfeasance or nonfeasance.

3. It is not his contract with the principal which exposes him to, or protects him from, liability to third persons, but his common-law obligation so to use that which he controls as not to injure another. The fact that the principal might be held liable does not excuse him under such circumstances.

4. The petition here alleging concurrent acts of negligence, for which both the resident and nonresident defendants are liable, the court did not err in overruling the nonresident defendant's petition for removal to the federal court.

BROYLES, C. J., dissenting.

Error from City Court of Jesup; D. M. Clark, Judge.

Suit by A. E. Knight against the Atlantic Coast Line Railroad Company and another. Named defendant's petition for removal to the federal court was overruled, and named defendant brings error.

Affirmed.

The plaintiff's petition makes substantially the following case against the defendants, the Atlantic Coast Line Railroad Company and B. C. Poppell: "1. The defendant railroad company is a railroad corporation operating a line of railroad through and having an agency and place of business in said county. 2. The defendant Poppell is a resident of said county and at the times herein referred was and for many years had been and now is in the employ of the defendant railroad company as section foreman." 3. Petitioner is the owner of a body of land which lies east of and is in close proximity to that branch line of said railroad known as the Jesup Short Line. 5. On April 6, 1932, fire resulting from the operation of trains of said defendant company burned over said land, resulting in ----damages to petitioner. "Said fire was started and spread to and burned over lands of petitioner, and petitioner was damaged as aforesaid because of the joint acts of negligence of defendants

[171 S.E. 920]

as hereinafter alleged. 6. At the point where said Are started and for several_miles in each direction therefrom said railroad company has a right of way extending about 75 feet on each side of its tracks * * *. 7. It is the duty of the defendant railroad company at all times to keep its right of way reasonably free and clear of dry grass and weeds and other easily ignitible substances * * *. 8. To keep the right of way reasonably free and clear of such matter as is easily combustible and through which there is danger of fire being started through the emission of coals, sparks, and fire from the operation of trains is one of the duties required of its section foreman by said defendant company. 9. Said defendant Poppell was the section foreman in charge of that particular portion of said right of way where and upon which said fire originated, and it was the duty of said Poppell, for the protection of the public against the danger and hazard of fire from the operation of trains, to keep said right of way at said point and at said time reasonably free and clear of dry grass and weeds and other easily ignitible substances, which duty said defendant Poppell owed to the public not only in his capacity as section foreman, but also individually by reason of having undertaken and entered upon the performance of said work as hereinafter shown. 11. Said defendants recognized this danger and the duty they owed to the public of keeping the right of way in such condition as reasonably to eliminate the danger of fire being set out through the operation of trains, and in part performed their duty in this respect by, just preceding the time in question, burning over and freeing from easily ignitible material the greater portion of the right of way in the area in question, but at a point about two and one half miles south of Jesup, Georgia, in said county, on said branch line known as the Jesup Short Line, where said line crosses a low swampy place about a quarter of a mile in width, the said defendant permitted and allowed to accumulate and be and remain, and there did accumulate, a large quantity of dry grass and weeds and other combustible and easily ignited material on that said portion of right of way. Said part of right of way for the entire distance of about a quarter of a mile through said low swampy place at the time of and before the fire in question was an unusually hazardous place for fire, for the reason that an unusual quantity of dry grass and weeds had accumulated thereon and which said defendants knowingly and negligently permitted to remain thereon, and were negligent and careless in the performance of their duty with respect to clearing the right of way of easily ignitible substances, for that, although said defendants entered upon said work and partly performed same, said de fendants negligently and carelessly, and without reason or justification, and in entire disregard of their duty and of the menace to the public of fire therefrom, left said part of said right of way through said swampy place for said distance of about a quarter of a mile in said hazardous and dangerous condition for fire, by reason of the said negligently permitted accumulation thereon of said dry grass and weeds and other easily ignitible materials. Said defendants had some time previously cleared said portion of said right of way of all trees and high bushes, by reason of which dry grass could and did grow in large quantities thereon and had grown and had accumulated in said area, and said portion of said right of way was so covered at the time of and preceding said fire, all of which was known to defendants." 12. That one of the defendant's passenger trains, in passing over said line on the morning of the fire, emitted live coals or sparks which fell among the dry grass and other easily ignitible and combustible materials, sotting fire thereto. 15. "Petitioner avers that the concurring negligence of both defendants in negligently and carelessly performing their duty with respect to keeping said right of way reasonably protected...