Atlanta & W. P. R. Co v. West

• Decision Date: 26 January 1905
• Citation: 121 Ga. 641,49 S.E. 711
• Parties: ATLANTA & W. P. R. CO. v. WEST.
• Court: Georgia Supreme Court

49 S.E. 711

121 Ga. 641

ATLANTA & W. P. R. CO.

v.WEST.

Supreme Court of Georgia.

Jan. 26, 1905.

MASTER AND SERVANT—RELATIONSHIP—VOLUNTEER—LIABILITY OF MASTER—INFANCY OF PLAINTIFF.

1. To create the relation of master and servant there must be some contract or some act on the part of one person which expressly or impliedly recognizes another as his servant.

2. One into whose service another volunteers without his assent, express or implied, is not under the duties of a master toward a servant, or required to anticipate or discover the peril of such volunteer, but is only bound, relatively to such volunteer, to use care not to injure him after notice of his peril.

3. Where a defendant has been guilty of no breach of any duty owing to the plaintiff, there can be no legal liability.

4. Where a volunteer engages in work undertaken in compliance with an unauthorized request of an employs of the defendant, the latter owes him none of the obligations of a master toward a servant, but is only bound to use care not to injure him after notice of his peril. The fact that the volunteer is of tender years, and without sufficient mental capacity to appreciate the danger, while it might be an element of notice to the defendant of the peril of the volunteer, cannot change the relations of the parties, or impose upon the defendant any duty not ordinarily imposed by law relatively to volunteers. Rhodes v. Georgia R. & Bkg. Co., 10 S. E. 922, 84 Ga. 320, 20 Am. St. Rep. 362, in part disapproved.

5. If the defendant had been negligent, and relied upon the concurrent negligence of the plaintiff to defeat or diminish the recovery, then the infancy of the plaintiff would be material to the determination of his diligence; but plaintiff's infancy cannot change the relations of the parties, or supply the place of negligence on the part of the defendant.

(Syllabus by the Court.)

Error from City Court of Newnan; A. D. Freeman, Judge.

Action by Willis West, administrator, against the Atlanta & West Point Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Dorsey, Brewster & Howell, W. G. Post, and H. A. Hall, for plaintiff in error.

W. C. Wright and J. B. S. Davis, for defendant in error.

SIMMONS, C. J. An action for damages for personal injuries was brought by Simmie L. West, a minor, by his next friend, against the Atlanta & West Point Railroad Company. Pending this action Simmie L. West died, and his duly appointed and qualified administrator was made a party in his stead. To the petition as originally filed the defendant had demurred. Subsequently the petition was amended in several particulars. The defendant renewed its grounds of demurrer, and also filed other demurrers to the petition as amended. The court overruled the demurrers, and the defendant excepted. The petition, after amendment, set up the following facts: On the morning of June 14, 1901, a freight train of the defendant became uncoupled because of a defective or broken coupling. For the purpose of repairing such coupling, and while the repairs were being made, a portion of the train stood upon and obstructed the crossing. One of the tools used by the train hands in repairing the coupling was an iron crowbar weighing about 50 pounds. While the repairs were in progress, young West, who came thither on his way to perform an errand for his father, after waiting for some time for the crossing to be cleared, went to the caboose or cab of the train to inquire when the crossing would be clear. When he approached the caboose, one of the brakemen on the train came up with a lot of tools which had been used to repair the coupling, among them the above-mentioned iron crowbar, and requested West to ascend the platform of the caboose and open the door so that the tools could be laid in the caboose. West, seeing no danger to himself in complying with this request, ascended the platform, and was proceeding to unbolt and open the door, when the brakeman handed him the crowbar, standing it up endwise, and letting one end rest on the platform, and requested West to take hold of it West took hold of the crowbar, and was supporting it with one hand, the other being upon the door knob, and West being in the act of opening the door, when "suddenly and violently, and without warning signal, and without warning to" West, the train was coupled together, the section attached to the engine coming in contact with the other section, of which the caboose formed a part "with great force, and said train was then suddenly and quickly Jerked and put in motion and with a sudden jerk, by reason and on account of which sudden coupling and contact and sudden starting and Jerking of said train" West was thrown back and down, the door slammed upon his right hand, and the crowbar fell upon and broke his right leg. West suffered great pain in his hand and leg. The injury to the legresulted In necrosis, and the leg had finally to be amputated. When West was requested by the brakeman to ascend the platform and open the door of the caboose and take hold of the crowbar, both sections of the train were perfectly still, and he had no reason to suppose or presume that they would be suddenly coupled together with great force and jar, and the train put in motion with a jerk, without notice to him. The brakeman was a man of long experience, and apparently about 50 years of age, while West was only 15 years and 2 months of age, and "without mental capacity, knowledge, and experience to know or comprehend that there was any danger" in complying with the request of the brakeman, "and without sufficient knowledge, mental capacity, and experience to avoid any danger" to which so doing might subject him. On account and by reason of West's tender years and inexperience he did not know, while he was on the platform, that the train might be coupled together suddenly and violently, and without warning, and put in motion with a sudden jerk. At the time of the injury "West did not have the mental capacity, knowledge, and experience of an ordinary boy fourteen years old." West was without fault, and in the exercise of due care, diligence, and circumspection, and his injuries were due wholly to the carelessness and gross negligence of defendant, its officers, agents, and employes. The petition charged that "defendant was negligent on account of its said employs requesting [West] to ascend the platform of said cab and open said door, and in handing said iron crowbar up to [West] with the request that [West] take hold of same; and especially was defendant, its agents, officers, and employes, grossly negligent in suddenly, violently, and with great force and jar coupling...