Ellington v. Beaver Dam Lumber Co.
| Decision Date | 27 November 1893 |
| Parties | ELLINGTON v. BEAVER DAM LUMBER CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the constitution of this state, the superior courts have no authority to grant charters to railroad companies. A company to which a charter was granted by the superior court for the purpose of "carrying on the general business of sawing all kinds of lumber by machinery run by steam, or such power as may be best adapted to the business, to place said lumber on market," etc., is not a railroad company although, according to its charter, it had authority "to buy, lease, sell, use, and operate locomotives and railroad engines on tramroads and railroads; to build, construct, and project railroads and tramroads contiguous to, and in connection with, and for the purpose of furthering facilitating, and more readily and easily carrying on, the aforesaid business of sawing, manufacturing, etc., as proposed." The fact that such company did, on some occasions, transport passengers and freight for hire, did not make it a railroad company, as to one of its own employes who was injured by the movement of a locomotive at a time, and upon an occasion, when the company was in no sense engaged in transacting business as a carrier for the public.
2. The manager of a vehicle used locally by a lumber company in the transportation of its supplies and products, and another servant of the company whose business it is to repair and keep in proper condition the track upon which the vehicle is run, and who, according to the custom of the company, is daily transported to and from his work on this vehicle, are fellow servants; both being in the employment of the company and the work of both, when regularly carried on, conducing to the accomplishment of a common object, to wit, the transportation of the company's supplies and products.
3. The laws of this state applicable to actions by employes against railroad companies, as such, are not applicable to an action against a lumber company, of the kind above indicated, by one of its employes, but the general law applicable to an action for personal injuries by a servant against his master must control. This being so, and it appearing from the evidence that the plaintiff and the fireman, through whose alleged negligence the plaintiff was injured, were fellow servants, the plaintiff was not entitled to recover, even if the negligence was established, and was the cause of the injury. Consequently, there was no error in granting a nonsuit.
Error from superior court, Burke county; H. McWhorter, Judge.
Action for personal injuries by Dennis Ellington, as next friend, against the Beaver Dam Lumber Company. From a judgment of nonsuit, plaintiff brings error. Affirmed.
Boykin Wright and Berrien & Munnerlyn, for plaintiff in error.
J. R. Lamar, H. H. Perry, and Johnston & Brinson, for defendant in error.
1. The superior courts have no power, under the constitution of this state, to grant charters to railroad companies. If, notwithstanding, a superior court should go through the form of incorporating a railroad company, and the alleged company transacted business as a common carrier in transporting freight and passengers, it may be that the persons composing it would be estopped from denying that it was a railroad company, and as such subject to the laws of this state with respect to the liability of railroad companies. It is quite obvious, however, that the superior court of Burke county, in granting a charter to the Beaver Dam Lumber Company, made no attempt whatever to incorporate it as a railroad company. The terms of the charter, as they appear in the record, show plainly enough that this company was incorporated to carry on the business of sawing and selling lumber of all kinds; and although it may have had authority to buy and operate engines on tramroads and railroads, and to build such roads, these powers were to be exercised only in connection with, and for the purpose of facilitating and more readily carrying on, the lumber business itself,--that is, they were merely incidental to the main object and purpose for which the company was created; and nowhere in the charter is any power granted to conduct a transportation business for the public, as would necessarily be done in the charter of a railroad company. The Beaver Dam Lumber Company was, therefore, not a railroad company; and so far, at least, as its own employes are concerned, this fact is not altered because, on some occasions, the company did transport passengers and freight for hire. Whatever its liability might be to those it served in this manner, it certainly was not liable as a railroad company to an employe for an injury occasioned to him by the movement of a locomotive at a time when the company was engaged strictly in the transaction of its legitimate business, and in no sense operating as a carrier for the public.
2, 3. For the purposes of this case it is proper, then, to treat the locomotive as a mere ordinary vehicle, and the person in charge of it as its manager, just as if it were a wagon, and that person were the driver or manager of the team by which the wagon was drawn. The engineer, strictly speaking, was the servant of the company, whose duty it was to manage the locomotive and control its movements; but the fireman's duty required him to be upon it also, and it was there his work was to be performed. He was a sort of assistant to the "driver." The action was brought by Dennis Ellington, as next friend of his minor son, Joe Ellington. Regularly, Joe should have been the plaintiff, suing by Dennis as his next friend, but the difference is of no consequence. Lasseter v. Simpson, 78 Ga. 61, 3 S.E 243; Van Pelt v. Railroad Co., 89 Ga. 706, 15 S.E. 622. For convenience, however, it will be understood that, when the word "plaintiff" is hereinafter used, reference to Joe Ellington is intended. It was his business, in connection with others, to work upon and keep in order the track of the company's railroad over which it transported its own products and supplies, and the evidence shows that it was the custom of the company to daily transport its track hands, including the plaintiff, upon the locomotive, to and from their work. The substance of the plaintiff's main contention is that, while he was in the act of getting upon the locomotive to be carried home at the close of a day's work, the fireman, by suddenly starting the locomotive, caused the injuries received by the plaintiff, who was free from fault, and that this conduct of the fireman was negligent. Before proceeding to discuss the question of the company's liability upon the assumption that the above contention was sustained, it will be proper, perhaps, to state and dispose of another contention made on the brief of counsel for plaintiff in error, and insisted upon here, which was that the negligence complained of, even though committed by the fireman, is imputable to the company itself, because the duty to supply the locomotive with a competent engineer devolved upon the company proper, and that, as the fireman was inexperienced and incompetent, putting him in charge of the engine, whether done by the company or its representative, was the negligence of the company itself. We quote from the declaration all that is material upon this point: "That said company was further careless and negligent in that the said train was carelessly and negligently started, as aforesaid, by a person not the engineer of said train, and in the absence of the engineer from the place of his duty; the person so attempting to run said train being inexperienced and incompetent." It will be observed there is no allegation that the company, either by itself or by any representative, supplied the "inexperienced and incompetent" person to run the engine, or made it his duty to do so. The declaration simply states what he did, but does not state that he had any authority from the company, direct or indirect, for so doing. The plaintiff himself testified it was not the business of the fireman to...
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