Corcoran v. Merchants' & Miners' Transp. Co.

• Decision Date: 28 March 1907
• Docket Number: 218.
• Citation: 57 S.E. 962,1 Ga. App. 741
• Parties: CORCORAN v. MERCHANTS' & MINERS' TRANSP. CO.
• Court: Georgia Court of Appeals

57 S.E. 962

1 Ga.App. 741

CORCORAN v. MERCHANTS' & MINERS' TRANSP. CO.

No. 218.

Court of Appeals of Georgia

March 28, 1907

Syllabus by the Court.

In an action for damages, brought by a servant against the master for injuries sustained, where evidence is adduced from which the incompetency of the plaintiff's fellow servants with whom he was put to work may be inferred, and that he did not have equal opportunity with the master to know this fact, and it is doubtful, from the evidence, whether the work was one requiring skill or merely strength, and whether the injury was caused by negligence or by incompetency, the questions in doubt should be submitted to the jury, and it is error to award a nonsuit.

Error from City Court of Savannah; Norwood, Judge.

Action by Thomas R. Corcoran against the Merchants' and Miners' Tranportation Company.Judgment for defendant and plaintiff brings error.Reversed.

Robert L. Colding, for plaintiff in error.

O'Connor O'Byrne & Hartridge, for defendant in error.

RUSSELL J.

Thomas R. Corcoran brought an action against the Merchants' & Miners' Transportation Company of Savannah for personal injuries received while he was engaged in storing lumber "12X12, about 32 feet long," in the hold of one of the steamships of that company.The question involved is the application of the principles of the law of master and servant to the case made by the plaintiff's evidence only; for at its conclusion the court awarded a nonsuit.The petition alleges that at the time Corcoran received his injury he had been engaged in storing this lumber but 30 minutes; that he had been employed on the steamer altogether for the space of from 2 hours to 2 1/2 hours; that the work of loading lumber requires skill and experience; and that it was the duty of the master to exercise ordinary care and diligence in the selection of his employés, and not to retain an employé in his service after the negligence unskillfulness, or incompetence of the employé was known to him, or where by the exercise of ordinary care and diligence he could and should have known such fact.The petition further alleges that the fellow servants with whom Corcoran was put to labor were negligent, unskillful, and incompetent, which fact was well known to the master, or in the exercise of ordinary care and diligence could have been known to him, but was unknown to Corcoran, as he did not have equal means of knowing.The petition further alleges: That Corcoran received his injury by a piece of lumber "12X12, about 32 feet long," falling upon his leg, which mangled and crushed it to such an extent that he lost a part of the leg.That, as a result, Corcoran sustained permanent injuries, and will be a helpless cripple for the remainder of his life.That the work of storing lumber in ships was in this manner: Part of the gang of men would go to one end of the piece of lumber, and lift up one end of it, and place it as near in position as possible, in which position it was held by some of the men, while the men at the other end of the piece would then lift up the other end and put it in position.That if the men at the piece which was stored first had performed their duty, and held the same in position, the injury to Corcoran would have been impossible; but on account of their negligence, unskillfulness, incompetence, and want of care, occasioned by their unfamiliarity with the duties to which they were assigned to perform, they failed to hold the said first end in position, but allowed the same to fall to the deck, thus mashing Corcoran's leg in the manner above stated.The petition further alleges that Corcoran, when injured, was 30 years of age and was earning a salary of $60 per month.

The exception to the order granting the nonsuit is the only error assigned.The nonsuit must have been awarded because, in the opinion of the court, the evidence adduced by the plaintiff showed either that he was injured through the negligence of his fellow servants, for which the master was not responsible, or, if his injury resulted from the incompetence of his fellow servants, the plaintiff had an equal opportunity with the company of knowing that fact.If the evidence could not, by any construction, lead to any other conclusion than that the plaintiff's injury was due to one or the other of these two causes, we would unhesitatingly concur in the opinion of the learned and distinguished judge whose judgment is the subject of complaint.But, keeping in view, as we consider the evidence, that the inferences to be drawn from proved facts, as well as their probative value are within the province of the jury, and that negligence is peculiarly a question of fact, whose existence or absence is to be determined by the jury, we are of opinion that the plaintiff made such a case as should have been submitted to the jury, and it should have been left with them to say whether the injury sustained was due to the negligence or the incompetency of the plaintiff's fellow servants with whom he was put to work, whether the plaintiff had an equal opportunity with the master of knowing of the incompetency of those with whom he was put to work (if any were incompetent), whether the work was one requiring skill or merely strength, and whether the injury was due to the plaintiff's own lack of strength and proper caution, or was caused by the negligence of the company.There can be no doubt that it is proper for the court to order a nonsuit where there is...