Mount v. Southern Ry. Co.

• Decision Date: 19 January 1931
• Docket Number: 20478.
• Parties: MOUNT v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

156 S.E. 701

42 Ga.App. 546

MOUNT v. SOUTHERN RY. CO. et al.

No. 20478.

Court of Appeals of Georgia, Second Division

January 19, 1931

Syllabus by the Court.

Petition against railroad for death of employee of railway contractor alleging railway retained or assumed control of manner of executing work, held good against demurrer (Civ Code 1910, § 4415).

An employer is liable for the negligence of a contractor, where he retains the right to direct or control the time and manner of executing the work, or interferes and assumes control so as to create the relation of master and servant. Under this rule, the allegations of the instant petition were sufficient to show the liability of the defendant railway company for the negligence of the contractor and its servants, and, a cause of action being otherwise set out, the court erred in sustaining the demurrer and dismissing the petition as to the railway company.

Petition for death of employee falling from scaffold held not demurrable as failing to show defendant ought to have known of deceased's perilous position before causing scaffold to fall.

As to the individual defendant the petition was not subject to demurrer upon the ground that it failed to show that the defendant knew or ought to have known of the peril of the plaintiff's husband at the time of the acts which caused the fatal injury, although the petition, because of contradictory allegations, might perhaps have been subject to demurrer upon the ground of duplicity.

Exceptions to overruling of demurrer to answer not referred to held abandoned.

Counsel for the plaintiff, who is the plaintiff in error, have made no reference whatever to the exceptions to the overruling of the plaintiff's demurrers to the answers of the defendants. These exceptions are therefore treated as abandoned.

Error from City Court of Floyd County; John W. Bale, Judge.

Suit by Mrs. Agnes Mount against the Southern Railway Company and others. Judgment for defendants, and plaintiff brings error.

Reversed.

Petition against railroad for death of employee of railway contractor alleging railway retained or assumed control of manner of executing work, held good against demurrer. Civ.Code 1910, § 4415.

Mrs Agnes Mount brought suit in the city court of Floyd county against Southern Railway Company, Glenn Pace, and Mitch McCullough, to recover for the homicide of her husband, J. J. Mount, who was killed while employed by Fairbanks, Morse & Company in the construction of a coal chute for and on the right of way of the railway company. The petition alleged that the death of the plaintiff's husband was caused by the negligence of Pace and McCullough, and of an unnamed agent and foreman of Fairbanks, Morse & Company, under whose direction and command the decedent was working, and whose orders it was his duty to obey; and the claim of liability against the railway company is predicated upon the theory that Fairbanks, Morse & Company was not an independent contractor, but that Southern Railway Company exercised such supervision and control over the time and manner of executing the work as to become responsible for the negligence of the employees of Fairbanks, Morse & Company.

The petition sought to hold the defendants Pace and McCullough liable because of their own negligence in the transaction. Fairbanks, Morse & Company was not sued, and McCullough was not served. The railway company and Pace filed separate demurrers, each of which the court sustained, and the plaintiff excepted. Error was assigned also upon judgments overruling demurrers to the respective answers of the railway company and Pace.

The only question to be decided in passing upon the demurrer of the railway company is whether Fairbanks, Morse & Company was an independent contractor, and the allegations bearing upon this question were as follows:

"27. Petitioner alleges that some months prior to said 5th day of October, 1927, the said Southern Railway Company and the said Fairbanks, Morse & Company entered into a certain contract and agreement whereby the said Fairbanks, Morse & Company was to erect and build for the Southern Railway Company the aforesaid described coal chute.

"28. Petitioner alleges that inasmuch as she is not in possession of said contract under which said Fairbanks, Morse & Company was erecting said coal chute for the Southern Railway Company she cannot attach hereunto a copy of said contract, but she hereby gives notice to said defendant company to produce in court upon the trial of said case on the 2d day of March, 1930, from day to day and term to term until said case is disposed of, said contract under and by which the said Fairbanks, Morse & Company was constructing said coal chute for the Southern Railway Company.

"29. Petitioner charges and alleges that under the terms by which said Fairbanks, Morse & Company was building said concrete coal chute for the Southern Railway Company, at the time her said husband was killed, that said contract expressly reserved and retained the right of said Southern Railway Company to direct and control the time and manner of the execution of the work.

"30. Petitioner further charges and alleges that in the execution of said contract and at the time the husband of your petitioner was killed, as aforesaid, that the Southern Railway Company was directing and controlling the time and manner of the execution of the erection of said coal chute aforesaid.

"31. Petitioner further charges and alleges upon information and belief that since the beginning of the erection of said coal chute and during the time that her said husband had been in the employment of the said Fairbanks, Morse & Company, and on the date when her said husband was killed, that the said Southern Railway Company had present its civil engineer, a man by the name of Lane, who had and maintained his office and place of superintendency and inspection of said work in a certain freight caboose, which was stationed and located within 20 feet of said coal chute, and that during the erection and construction of said coal chute, and at the time your petitioner's said husband was killed, that that agent of the Southern Railway Company, and said civil engineer, was directing and controlling the time and manner of the execution of the work in the erection and tearing down of said scaffold from said coal chute, and the withdrawing of said pins from the said coal chute as aforesaid."

By an amendment to the petition it was alleged: That "under the terms of said contract the Southern Railway Company was to retain the possession of the right of way of the defendant, where said coal chute was to be operated, and was to have present its said engineer aforesaid, for the purpose of directing when said coal chute was to be erected, and how and the way and manner that said work was to be done, and that the Southern Railway Company had control of said work at the time your petitioner's husband was killed and did retain the possession of the right of way of the defendant, and did direct and control the time, the way and the manner in the execution of said work, and did control and direct the foreman of the said Fairbanks, Morse & Company, whose name is to your petitioner unknown, as to the way and manner that said work was being carried on. *** That the said Lane, the said civil engineer of the defendant, who was present when petitioner's said husband was killed as aforesaid, had the superintendency of...