City Council of Augusta v. Owens

• Decision Date: 14 July 1900
• Parties: CITY COUNCIL OF AUGUSTA v. OWENS.
• Court: Georgia Supreme Court

36 S.E. 830

111 Ga. 464

CITY COUNCIL OF AUGUSTA v. OWENS.

Supreme Court of Georgia

July 14, 1900

Syllabus by the Court.

1. The petition in this case sets forth a good cause of action, and therefore the court did not err in overruling the general demurrer thereto.

2. There was no merit in the special demurrer based upon the ground that the petition did not allege where the quarry was located. It was sufficient in this respect, because it informed the defendant of the time of the injury that occurred at this quarry, the name of defendant's superintendent of the work there, gave a general description of the quarry, and set forth such facts and circumstances as would leave no room for uncertainty or doubt in the mind of the owner, who was the defendant, as to what quarry was referred to in the petition.

3. Where a municipal corporation is engaged in operating a rock quarry which it owns, a person placed there by its authority as general superintendent of the work, with power to direct the movements of its laborers, not joining with them in the labor, and being as to this business the city's sole and only representative, is the vice principal, and not the fellow servant of the workmen under his charge; and this is so whether it was within the scope of his authority to engage the workmen or not.

4. Though the immediate cause of a physical injury to an employé may be the negligent act of a fellow servant, the master is liable, if the fellow servant did this act under and in obedience to an order given by a vice principal of the employer, if the giving of the order was itself an act of negligence as to the defendant.

5. There was no error in the court charging the jury: "It was the duty of the defendant to furnish a reasonably safe place for this man to work. It was the right of the plaintiff to assume that the place was safe when he was directed to go to it." In the light of the pleadings, testimony, and the entire charge of the court, the language quoted, which is, abstractly considered, a correct statement of a general rule of law, was not calculated to mislead the jury.

6. A request to charge on a defense not setup by the answer either by affirmative statement, or by denial of any of the allegations in plaintiff's petition, was properly refused. There being an agreed statement of facts "that the tract of land on which this accident happened formerly belonged to the Augusta Canal Company; that the right to quarry was conveyed to the city council of Augusta, under the provisions of the act of 1849, and that the city council of Augusta has police jurisdiction over the tract; *** that this tract comes within the provisions of the act,"--it was not ultra vires to operate the quarry for the purpose of obtaining material to repair the streets or a canal which the defendant had authority to own and operate.

7. The testimony in the present case showing that the operation by defendant of the quarry in question was a ministerial act on its part, and there being no evidence to indicate that the work in which the city was engaged was governmental in its nature, the court did not err in refusing a request of defendant's counsel to charge the jury on this subject.

8. A person whose capacity to labor has been permanently diminished by physical injury wrongfully inflicted upon him by another can recover damages therefor, notwithstanding there may have been no proof as to what such person's earnings were before or after the injury. Hence there was no error, in the light of the pleadings and the evidence in this case, for the court to charge the jury on the subject of the right of plaintiff to recover for his decreased capacity to work, if the jury found from the evidence that the injury received was permanent.

9. There being nothing either in the pleadings or the evidence which gave the jury a right to find any damages growing out of the diminished earnings of plaintiff for his labor resulting from the alleged injury, it was error for the court to charge the jury to inquire whether there would have been any increase in plaintiff's earning capacity if this injury had not occurred, and to say how much that was affected by the injury, and then allow what they believed would compensate him for that loss.

10. The above covers all the questions of importance made by the present record. While there are several other grounds in the motion for a new trial relating to requests to charge, after comparing them with the entire charge of the court actually given, they are not of sufficient merit to require notice. The charge, as a whole, except as specified in the ninth head-note above, was full and fair, and covered all the material issues between the parties. The judgment denying a new trial is reversed only because of the error therein indicated.

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

Action by Benjamin Owens against the city council of Augusta. Judgment for plaintiff. Defendant brings error. Reversed.

Wm. H Barrett, for plaintiff in error.

J. R Lamar and E. B. Baxter, for defendant in error.

LEWIS J.

Benjamin Owens instituted in the city court of Richmond county an action for damages against the city council of Augusta substantially making by his petition the following case: Defendant in May, 1897, at the time of the injuries to plaintiff hereinafter mentioned, owned and operated a certain quarry, from which it was engaged in obtaining rock to be used by it in making improvements on its streets, in keeping the same in proper repair, and for other like corporate purposes, within the scope of its duty and authority. It had in its employ a large number of laborers, who were engaged in getting out rock from the quarry for defendant's use as aforesaid. On said date plaintiff was engaged as one of said laborers in defendant's employ. This work at defendant's quarry was conducted under the superintendence, supervision, and control of one John Joy, who directed the same; being clothed by defendant with full power and authority, as its representative and agent, over the actual conduct of the work at said quarry. His duties were those of supervision, direction, and control. Petitioner and all the laborers and employés were, while engaged in said work, amenable to his orders,--required to obey them, and to look to him, as their superior, for direction in said work. They were thus subordinated to him, as their superior or principal. He had authority to discharge them for cause. This quarry at the time mentioned, consisted of a large, level space or area, at the back of which rose, almost perpendicularly, to the height of 80 or 90 feet, a wall of rock, from which, by blasting, drilling, and quarrying, rock was obtained for defendant's use, and from whose face the rock, when loosened, fell to said area, whence it was removed. On said date plaintiff went to his work as usual at the quarry, and during the early portion of the morning Joy ordered him, with two other laborers, to go to the foot of said quarry, the base of said wall or rock, and there drill a hole pointed out by said Joy, in order that a blast might be placed therein, which work was in the usual line of plaintiff's employment at the quarry; his duty being, in connection with drilling said hole, to drive the drill with a hammer. One of the other two laborers held the drill, while the third was engaged with plaintiff in driving the same. While being thus occupied for a short time, and when in the act of striking the drill, a piece of rock, falling from above, struck him upon the head, inflicting injuries hereinafter set out. At the time the order was given him by Joy, the said Joy, without warning to petitioner, negligently ordered two other laborers to go to a point on the face of the quarry wall almost directly over the spot where plaintiff was at work when struck, and about 75 feet above him, and there to quarry out some rock which had been loosened by a blast. One of said laborers, in obedience to said orders, after reaching the place designated by Joy, in ignorance of petitioner's position, in the usual and ordinary method, did with a crowbar, loosen and move, without negligence, from its place, a large piece of rock; and the same rolled down the face of said wall, and in its course broke in pieces, one of which struck plaintiff on the head. It was charged: That the act of said Joy in sending laborers to quarry out rock almost above plaintiff's head was gross negligence, was in reckless disregard of the safety of plaintiff and those working with him, and was a violation of the duty which Joy owned plaintiff. That this improper and negligent conduct of Joy rendered plaintiff's position excessively and unusually perilous, and perilous in a manner and to an extent which plaintiff could not possibly have anticipated or foreseen, and that this conduct was the cause of plaintiff being struck by the rock and injured. Plaintiff did not know or suspect, nor could he by proper diligence have known or suspected, that said laborers were quarrying above him. That he was thereby subjected by defendant, acting through Joy, to a risk not reasonably incident to his employment, and when he was hurt he was exercising all due care and diligence. The blow rendered him unconscious, and he remained so for some time. Was carried to a hospital, where he remained for several weeks under the care of a competent physician. That his skull was crushed in by the blow. That a portion of same had to be removed, and that his brain is now protected at that point only by his scalp. As a result thereof, he is constantly exposed to danger of serious injury, and even death. That he is thereby caused great and constant distress and apprehension of mind. That said condition will be permanent. That he...