Henderson v. Walker
| Decision Date | 31 July 1875 |
| Citation | 55 Ga. 481 |
| Parties | Robert Henderson, plaintiff in error. v. Thomas A. Walker et al., receivers, defendants in error. |
| Court | Georgia Supreme Court |
Railroads. Torts. Receivers. Before Judge Underwood. Floyd Superior Court. January Term, 1875.
Reported in the opinion.
Johnson & McCamy; Dabney & Fouche, for plaintiff in error.
C. Rowell, for defendants.
A new and interesting question in the jurisprudence of our state is made in this record. Receivers were in possession of a railroad under a court of equity, operating it and using its franchises under the orders of that court. One of their employees, whilst engaged in working upon a bridge on the line of the road, received a personal injury, in consequence of the negligence of his co-employees in the same service, his leg being broken from some improper handling of a rope used in *erecting the structure. He petitioned for leave to bring suit against the receivers, and it was granted. He brought suit accordingly against them in their official capacity. A motion was made at the trial, in behalf of the defendants, to dismiss the declaration. It was sustained; the declaration was dismissed, and the order granting leave to sue was rescinded, on the ground that there was no cause of action. The general rule of the common law remains of force in Georgia, that the principal is not liable to an agent for injuries arising from the negligence or misconduct of other agents about the same busi-ness: Code, section 2202. An exception prevails by statute in the case of the employees of railroad companies: Code, sections 2083, 3033, 3036.
It admits of some doubt whether the exception embraces any injuries but such as are sustained from the running of cars or engines. We are inclined to think the terms of section 3033 are broad enough to comprehend all injuries, and that the chief, if not the only difference between an employee of a railroad company, and a stranger to the company, in respect to the right to recover, is that the doctrine of contributory negligence, recognized in section 3034, applies to the latter only. The former, in order to recover anything, must be without fault; he is denied the advantage of apportioning the damages according to the degree of his own negligence or misconduct as compared with that of the company or its other employees: See Code, section 3036; 35 Georgia Reports, 105. In the present case, however, we find it unnecessary to rule the question whether, if this plaintiff were an employee of a railroad company, he would have a cause of action or not. He shows by his declaration that he is not such an employee. He rests his case on a statutory right, and yet does not put himself into the only class to which the right belongs. The company owning the road was not in possession. It had no employees. There was no privity between it and the plaintiff. He was not its servant; it was not his master. It had nothing to do with selecting his co-employees whose negligence...
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Powell v. Sherwood
...cases referred to by appellant were there cited and relied on by the receiver, and also a Georgia decision to the same effect (Henderson v. Walker, 55 Ga. 481); but the per Mr. Justice Harlan, said: "If the reasoning of the Georgia and Texas courts be applied to the Ohio statute it can not ......
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...167, 10 Atl. 346. While other courts have reached a contrary result. Turner v. Cross, 83 Tex. 218, 18 S. W. 578,15 L. R. A. 262; Henderson v. Walker, 55 Ga. 481. It is not necessary to review these decisions because they all rest upon statutes differing more or less from the one here consid......
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Statutes in Derogation of the Common Law in the Georgia Supreme Court - R. Perry Sentell, Jr.
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