Blackman v. Thomson-Houston Elec. Co. of Augusta

• Decision Date: 27 July 1897
• Parties: BLACKMAN v. THOMSON-HOUSTON ELECTRIC CO. OF AUGUSTA.
• Court: Georgia Supreme Court

29 S.E. 120

102 Ga. 64

BLACKMAN v. THOMSON-HOUSTON ELECTRIC CO. OF AUGUSTA.

Supreme Court of Georgia

July 27, 1897

Syllabus by the Court.

1. One who is employed in the capacity of engineer for an incorporated manufacturing company, but who is likewise under a duty to obey generally the orders of a person who is placed in authority over him, and who has power temporarily to withdraw him from the performance of the special duty for which he was employed, and to assign him to the performance of other and inconsistent duties, not connected with or embraced within his special employment, is not a fellow servant with such superior; and if, while engaged in the performance of such duties which had been so assigned to him by his superior, he be injured, he cannot be regarded as a mere volunteer.

2. While the person occupying the inferior position is, in a broad and general sense, a co-employé, he is not a fellow servant with the person in authority over him in the sense that he could not recover for injuries sustained by him in consequence of the negligence of such person.

3. If in the prosecution of the business of the corporation, the agent having a general control of its working plant causes a scaffold to be constructed by other employés, under his direction, for the purpose of removing heavy machinery, and after its completion, temporarily with draws the engineer from the performance of the special duties for which he was employed, and directs him to assist in the removal of such machinery, using for that purpose the scaffold so constructed, and because of some imperfection therein resulting from a defect in the plan of its construction, such defect being unknown to the engineer, such scaffold falls, and in consequence injures the engineer, he is entitled to recover.

4. Where the person in authority, representing the master, undertakes to plan such a contrivance, and to superintend its construction by ordinary, unskilled laborers, such person thinks for the master, and the servant who uses it does not take the risk of defects of design, and the master will not be excused, if, in consequence of such defects only, the servant is injured; but if the master deliver to such laborers material well suited to that purpose, leaving it to their discretion to devise the plan of so simple a contrivance as they proceed with the work, no recovery could be had by one who, as a fellow servant with such laborers, subsequently undertook to use such contrivance, and, because of defects therein, was injured; and this is true whether the defect was of plan or construction. In either case the injury would be imputable to the negligence of the fellow servant.

5. Under the principles above announced, the court erred in directing a nonsuit.

Error from city court of Richmond; W. F Eve, Judge.

Action by Thomas Blackman against the Thomson-Houston Electric Company of Augusta. Plaintiff was nonsuited, and he brings error. Reversed.

H. C. Hammond and H. Phinizy, for plaintiff in error.

J. R. Lamar, for defendant in error.

ATKINSON J.

Blackman an employé of the Thomson-Houston Electric Company of Augusta, was hurt by the falling of a scaffolding upon him while he was attempting, together with other employés of the company, to move an iron wheel from a wagon into the power house of the company by means of a block and tackle attached to the scaffold; and he sued the company for damages, alleging that the falling of the scaffold was due to the negligence of the defendant in not having it properly supported or braced, and that the defendant was negligent in not giving him notice or warning of its unsafe and insecure condition. On the trial of the case, at the conclusion of plaintiff's evidence the court granted a nonsuit, and to this he excepted. The following appeared from the evidence: The scaffold was built according to the directions and under the personal supervision of one Conners, who was defendant's general foreman at the power house, for the purpose of moving the wheel, which weighed over 5,000 pounds. The scaffold was constructed thus: An upright post, about 10 or 12 feet high, and about 10 or 12 inches "in size," was placed opposite a window of the second story of the defendant's building, so that a wagon could pass between it and the building; and on this post, and extending from it northward through the window, and into the building, were a piece of timber and three planks, the north end of which rested on a pile of blocks to keep the timber from lying on the window sill,--the blocks being higher than the sill, and resting on the floor of the building. The scaffold was braced east, west, and south, but not on the north side or inside of the building. To the timbers extending from the post into the window a block and tackle were attached. The wheel was to be carried through a door directly under the window. On the occasion in question the wagon from which the wheel was to be moved was driven directly under the scaffold, and in front of this door. The wheel was hoisted from the wagon by means of the block and tackle, the wagon was driven from under, and the wheel was lowered nearly to the ground, and shoved towards the sill of the door. It had to be shoved a distance of two feet, and it was while this was being done that the scaffold gave way and fell. The failure to brace the scaffold on the fourth side rendered it unsafe, though, from the place where plaintiff was at the time of the moving, it appeared to be safe. He did not examine it, and he thought it was safe. The fall of the scaffold was a result of the pushing of the wheel, which was done under order of Conners, and which was an improper thing to do in the absence of a support to the scaffold at the end which was not braced. With the same scaffold, on a previous occasion, the wheel had been safely taken out of the building. If the scaffold had been safe, the wheel could, without trouble, have been moved to the place to which they were trying to move it. The plaintiff had been in the employment of the defendant about four days before the occurrence in question. He was an engineer, and had been employed to run the engine at the defendant's power house, and to do other work required of him, and whatever Conners told him to do. At the time of the moving of the wheel, Conners was at the wheel, and did not have help enough to move it, and he ordered the plaintiff to assist in the moving. Brydges, the defendant's superintendent, heard the order given, and made no objection. Brydges, was "up in the building" while the wheel was being moved, but knew it was being moved. Conners had the right to direct the help at the power house, and to employ and discharge the hands, and he hired plaintiff. Conners' duties were to look after the machinery,...