Central of Georgia Ry. Co. v. Macon Ry. & Light Co.
| Decision Date | 18 July 1913 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. MACON RY. & LIGHT CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The plaintiff's petition showed that it had been required under a judgment in a prior suit to pay a certain sum as damages for the homicide of the plaintiff's husband, and that in that suit it had by notice duly served vouched in the present defendant, and that the injuries which resulted in the homicide were caused by wrongful acts and negligence upon the part of the defendant, in which wrongful acts and negligence the plaintiff had in no way participated, and that it was not guilty of the same or like negligence as that of the defendant which resulted in the injury.
Held, that a right of action in the plaintiff was stated in the petition, and it was error for the court to sustain a general demurrer thereto.
The fact that the plaintiff had formerly brought suit for the same cause of action and had been nonsuited, which judgment of nonsuit was affirmed upon appeal to the Court of Appeals of this state, does not prevent the bringing of the suit again within six months from the date of the affirmance of the judgment of nonsuit. Civ. Code 1910, § 4381.
(Additional Syllabus by Editorial Staff.)
That the petition in the action in which judgment was obtained against plaintiff for the death of an employé was based upon alleged positive acts of negligence as well as failure to inspect did not preclude plaintiff in its subsequent action against another company, which was guilty of the sole positive acts of negligence causing the death, from showing that its liability in the prior suit was based entirely upon its failure to inspect, and that in fact it was guilty of no positive acts of negligence.
Error from Superior Court, Bibb County; W. H. Felton, Judge.
Action by the Central of Georgia Railway Company against the Macon Railway & Light Company. Judgment for defendant, and plaintiff brings error. Reversed.
Plaintiff is seeking to recover from the defendant the amount of a judgment rendered against the plaintiff, and which the latter was compelled to pay, in favor of the widow of one E. O Minor, in a suit brought by her for the homicide of her said husband; it being now alleged that the proximate cause of Minor's death was the negligence of the defendant in the present case. In the original suit it was alleged that Minor being in the employment of the Central of Georgia Railway Company, was required to assist in coaling an engine of that company at a coal chute in its yards; that he was directed to go upon the tender of the engine and pull down an apron, in order that the coal from the bin might be conveyed into the tender; that the apron, which was of sheet metal, was held in position by a steel cable, used in raising and lowering the apron; that, when Minor took hold of the apron to lower it, the cable attached thereto came in contact with an electric light wire, which wire was fastened to the coal chute and from there carried to a pole some distance off, upon which an arc light was situated; that when the cable came in contact with this wire, which was heavily charged with electricity, the electric current passed into and through Minor's body, so shocking him that he then and there died. In her petition plaintiff alleged that the Central of Georgia Railway Company was guilty of negligence in the following particulars: That the wire had been maintained in that place where it was likely to come in contact with the cable, and where it was likely to so charge the same with electricity, for a great length of time, and that it was under the entire control and management of the said Central of Georgia Railway Company; that the proximity of said wire to said cable, and the danger of its coming in contact with the same, and the current of electricity passing from said wire into said cable and being conveyed to said apron, was well known to the said Central of Georgia Railway Company, or could easily have been ascertained by the exercise of ordinary care and diligence on its part; that the danger to employés of said company, in the use of said appliance, could easily have been discovered and guarded against, had it used ordinary care and diligence; that the wire was originally placed in said position, unnecessarily and carelessly; that it could have been placed in another position, where it would have served the purpose and not have come in contact with said appliance; that the danger to the lives of defendant's employés was imminent at all times, and this fact was well known to defendant, or by the exercise of ordinary care could have been known. Before that suit was tried the defendant, Central of Georgia Railway Company, vouched the Macon Railway & Light Company into court to defend the suit; the latter company having erected the pole and the arc light and strung the wire, and owning the same. The Macon Railway & Light Company did not appear and make defense. Upon the trial a verdict was rendered against the Central of Georgia Railway Company, and judgment entered thereon, which that company had to pay. The Central of Georgia Railway Company then filed suit in the city court of Macon against the Macon Railway & Light Company to recover the amount it had to pay in the above-stated case, which suit upon the trial was nonsuited. Upon appeal to the Court of Appeals, the judgment granting a nonsuit was affirmed. Within six months after the affirmance of the judgment the present suit was brought by the same plaintiff against the Macon Railway & Light Company, being filed in the superior court of Bibb county. The allegations in this latter suit are sufficiently set forth in the opinion. Upon general demurrer to the petition, the court below dismissed the same, and plaintiff excepted.
R. C. Jordan, of Macon, for plaintiff in error.
Guerry, Hall & Roberts, of Macon, for defendant in error.
BECK, J. (after stating the facts as above).
While it may be true that as a general rule one of two or more joint tort-feasors has no right of action over against those connected with him in the tort for either contribution or indemnity, where he alone has been compelled to satisfy the damages resulting from the tort, yet in some cases one who is liable as a tort-feasor, because he has failed to exercise due diligence to discover a defect or danger in machinery, appliances, or place where the injured person is required to work, and has been compelled to pay damages for injuries growing out of the tort, may have a right to recover over against another whose negligence produced or brought about the defect or dangerous condition in the machinery, appliances, or place, which defect was the proximate cause of the injury; and the present case seems to us to belong to the latter class. The plaintiff charges that the defendant was negligent in respect to certain acts upon the part of the latter which was the proximate cause of the death of Minor, for which Minor's widow recovered damages in the previous suit.
It is charged in the petition that the plaintiff employed the defendant to erect and maintain an arc light near petitioner's coal chute for the purpose of furnishing light to its employés engaged in performing their duties about the coal chute. The plaintiff pointed out to the defendant the place where it desired the light to be erected but left it with the defendant as to how the wires should be strung in order to furnish the arc light with electricity; that the arc light and the wires connected therewith were the sole property of the defendant. Petitioner was entirely inexperienced as to electricity and in the matter of electrical appliances, and had to rely upon the skill and knowledge of the defendant to so construct and insulate its wires that there would be no danger to the property of the petitioner or its employés while engaged about their work. It is alleged in the petition that the defendant strung its wires connected with the light along the side of the coal chute in such a way that the steel cable used in operating the "apron" which is used for coaling the engine would come in contact with the electric wire while lowering and raising the apron, and that the defendant company was negligent in not properly insulating the wire and in...
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