Central Trust Co. of New York v. East Tennessee, V. & G. R. Co.

• Decision Date: 25 February 1888
• Citation: 69 F. 353
• Parties: CENTRAL TRUST CO. OF NEW YORK v. EAST TENNESSEE, V. & G. RY. CO. (MITCHELL, Intervener).
• Court: U.S. District Court — Northern District of Georgia

69 F. 353

CENTRAL TRUST CO. OF NEW YORK v. EAST TENNESSEE, V. & G. RY. CO. (MITCHELL, Intervener).

United States Circuit Court, N.D. Georgia.

February 25, 1888

An employe injured by being brought in contact with a coal chute placed too near the track, while standing on the ladder at the side of the car, instead of on top thereof, as the rules and custom require, cannot recover damages for injuries.

Hoke Smith and Burton Smith, for intervener.

Bacon &amp Rutherford and Mynatt & Carter, for the receiver.

NEWMAN District Judge.

This motion has been elaborately argued, and carefully prepared briefs have since been furnished me by counsel on both sides. I do not clearly see how one question which was argued at considerable length is in this case, namely, as to whether the statute of Georgia which makes an employer liable for an injury to one employe by the negligence of a coemploye is applicable to a suit against a receiver of a court operating a railroad. While it is true that the question of the liability of the employer to an injured employe by the negligence of a coemploye, and the question of the liability of the employer for injuries received from dangerous structures and the like, erected by the employer, grew out of the same general principle originally,-- that the servant assumed the natural and obvious risks of the master's service,-- yet the two branches of the subject, viz. fellow servants' negligence and dangerous structures and the like, are in many respects distinct. While in Georgia, under the statute, a railroad company would be liable to an employe for an injury caused by the negligence of a coemploye, if the injured party be free from fault, yet I am not aware of anything in the Georgia statutes changing the common-law rule as to the assumption by the servant of the patent dangers of the master's service. I am inclined to think that this case comes within the latter class, and am not sure, therefore, that any ruling is necessary upon the question as to whether, under the statute and the decisions of the supreme court of the state, a receiver is liable to an employe injured by the negligence of a coemploye; but, if the question is involved in this case, I am clearly of the opinion that the decision of the supreme court of Georgia in the case of Henderson v. Walker, 55 Ga. 481, must control. In that case it was held that receivers of a railroad holding possession for a court of chancery, and operating the road under the orders of the court, are not subject to suits in their official capacity for a personal injury to one of their employes resulting from the negligence of other employes in the same service. The replies made by counsel for intervener in this case to this decision were first, that this was not a construction of the statutes (Code Ga. Secs. 2083, 3036), but, as I understand the argument that it is an application of the common law to the statute rather than a construction of the statute, and that being such, it is merely advisory to a United States court, and would not control it. I do not concur in this view of the decision. The court, in the decision named, uses this language: 'Doubtless the receivers, as common carriers, bear a relation to the public very similar to that of other common carriers; but the difference between the public and this plaintiff is that the public can appeal to a general law applicable as against all common carriers, whereas the plaintiff must invoke a special statutory provision, which will not reach all employers alike, but only railroad companies. ' And again, this language: 'Still it is clear that employes of receivers are not within the words of the Code,'-- showing that the court is construing the language and meaning of the statute, and not simply holding that under the common law the receiver is not liable to the same extent as the railroad company would be. In the language first quoted from this decision the court recognizes the fact that the receiver is a common carrier, and bears a relation to the public very similar to that of other common carriers. It goes on to say, however, that the plaintiff, an employe, must invoke a special statutory provision which will not reach all employers alike, but only railroad companies. The effect of this decision, of course, is that receivers do not stand in the place of the company as to employes; but it is clearly arrived at from a construction of the language of the statute. This is a statute peculiar to Georgia. It is a departure from the common law; and a court of the United States, called upon to construe it, will adopt the ruling of the highest court of the state as to its meaning. The decision in 55 Ga., supra,...