McDonnell v. Central of Georgia Ry. Co.

• Decision Date: 30 May 1903
• Parties: McDONNELL v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Supreme Court

44 S.E. 840

118 Ga. 86

McDONNELL v. CENTRAL OF GEORGIA RY. CO.

Supreme Court of Georgia

May 30, 1903

Syllabus by the Court.

1. Applying the rules laid down in the Civ. Code 1895, §§ 2611, 2612, in reference to suits against masters other than railroad companies, to the facts of the present case, the court erred in granting a nonsuit. The evidence authorized a finding that the defendant was negligent in reference to the machinery furnished upon which the servant was at work at the time of his death, and that the defects in the machinery were of such a character that the defendant ought to have known of them, and have given warning to the servant in respect thereto, as well as a finding that the servant did not know of the defects, and had not equal means with the master of discovering the same, and was not required to make an inspection or examination to discover the defects, and therefore was not lacking in ordinary care in proceeding to work upon the machinery without making an inspection or examination.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by T. M. McDonnell against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Ross & Grace, for plaintiff in error.

Lawton & Cunningham, Hall & Wimberly, and J. E. Hall, for defendant in error.

COBB J.

The plaintiff brought her action against the defendant company for damages for the homicide of her husband, who was a machinist in its employment. He was killed by the explosion of the boiler of a locomotive in the shops of the defendant. The locomotive had been in the shops for several days undergoing repairs, and was not in use as a locomotive at the time the boiler exploded, steam having been generated simply for the purpose of aiding in making the necessary repairs. At the conclusion of the evidence for the plaintiff the court granted a nonsuit, and the plaintiff excepted.

It is contended that the plaintiff is not entitled to the benefit of the presumption of negligence authorized by Civ. Code 1895, § 2321, because the homicide was not the result of "the running of the locomotives, or cars, or other machinery," or of the act of "any person in the employment or service" of the company. While there are numerous cases in which it may appear that the court has dealt with the law embraced in this section of the Code as applicable to suits for injuries received by or for the homicide of employés of railroad companies occasioned in the manner stated in the section, there are several rulings to the effect that the provisions of this section are not applicable in any suit for injuries to or the homicide of such employé. W. & A. R. Co. v. Vandiver, 85 Ga 471, 11 S.E. 781; Georgia R. Co. v. Hicks, 95 Ga 302, 305, 22 S.E. 613 (2); Fla. C. & P. R. Co. v. Burney, 98 Ga. 1, 26 S.E. 730; Port R. & W. C. R. Co. v. Davis, 103 Ga. 579, 30 S.E. 262; Augusta So. R. Co. v. McDade, 105 Ga. 135, 138, 31 S.E. 420 (6); W. & A. R. Co. v. Jackson, 113 Ga. 356, 38 S.E. 820; Atlantic & B. R. Co. v. Reynolds, 117 Ga. 47, 43 S.E. 456.

It is also contended that there is nothing in Civ. Code 1895, § 2297, which declares that, as railroad "companies necessarily have many employés who cannot possibly control those who should exercise care and diligence in the running of trains, such companies shall be liable to such employés as to passengers for injuries arising from the want of such care and diligence," which would authorize a presumption of negligence to arise in favor of the plaintiff, for the reason that the husband of the plaintiff was not killed by the running of trains, and that there was no presumption at common law in favor of passengers except where the injury or death resulted from the running of trains. In other words the contention is that the case of the plaintiff is not brought within any of the statutory provisions of this state which modify the common law relating to master and servant with respect to suits against railroad companies. It is, of course, admitted that under the law of this state the common-law rule which prohibited one servant from recovering from the master for injuries received as a result of the negligence of a fellow servant is not applicable in any case where the master is a railroad company, whether the injury results from the running of trains or otherwise. Thompson v. Railroad Co., 54 Ga. 509 (1); Georgia Railroad v. Ivey, 73 Ga. 499 (1); Georgia Railroad Co. v. Brown, 86 Ga. 320, 12 S.E. 812; Ga. R. Co. v. Miller, 90 Ga. 571, 16 S.E. 939 (1); Ga. R. Co. v. Hicks, 95 Ga. 301, 22 S.E. 613 (1); Southern Ry. Co. v. Johnson, 114 Ga. 329, 40 S.E. 235 (1). It is contended, though, that this modification of the common-law doctrine has no application to the present case, it not being claimed that the homicide of the plaintiff's husband was the result of the negligence of a fellow servant. It is claimed by the defendant that its liability is to be determined in this case solely by the law of master and servant as it existed at common law. For the purposes of this case, this will be conceded to this extent: that is, that the liability of the company is to be determined by the general law of master and servant as it is found in the Code, applicable to cases where the master is other than a railroad company. The duties of a master other than a railroad company are laid down in section 2611, which is as follows: "The master is bound to exercise ordinary care in the selection of servants, and not to retain them after knowledge of incompetency; he must use like care in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery, or dangers incident to an employment unknown to the servant, of which the master knows, or ought to know, he must give the servant warning in respect thereto." Section 2612 provides: "A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by the preceding section, it must appear that the master knew or ought to have known of the incompetency of the other servant, or of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof." The section just quoted purports to be a codification of the rules laid down in the cases of McDonald v. Eagle Manufacturing Company, 68 Ga. 842, Georgia Railroad Co. v. Nelms, 83 Ga. 75, 9 S.E. 1049, 20 Am.St.Rep. 301, and Davis v. Augusta Factory, 92 Ga. 713, 18 S.E. 974; and the rules laid down in the last two cases are taken from Wood's Law of Master and Servant. Under this section of the Code, in suits for injuries arising from dangers which are unknown to the servant, in order to authorize a recovery by the servant, or in a suit for his homicide, it is necessary that two things should appear: First, that the master knew or ought to have known of the danger to which the servant was exposed; and, second, that the servant did not know of such danger, and had not equal means with the master of knowing it, and by the exercise of ordinary care could not have known thereof. In other words, as it is sometimes expressed, it is incumbent upon the servant to show, not only "negligence on the part of the master," but also "due care on his own part." Brush Electric Co. v. Wells, 103 Ga. 515, 30 S.E. 533 (1); McDaniel v. Acme Brewing Co., 113 Ga. 80, 38 S.E. 404. If the servant shows that the machinery he was furnished to work with or upon was in a defective condition, and that work with or upon such machinery subjected him to danger, he has carried the...