Ocean S. S. Co. v. Cheney

• Citation: 12 S.E. 351,86 Ga. 278
• Parties: OCEAN S. S. CO. v. CHENEY.
• Decision Date: 01 December 1890
• Court: Georgia Supreme Court

12 S.E. 351

86 Ga. 278

OCEAN S. S. CO. v. CHENEY.

Supreme Court of Georgia

December 1, 1890

Error from city court of Savannah; HARDEN, Judge.

Lawton & Cunningham, for plaintiff in error.

J. R Suassy, for defendant in error.

SIMMONS J.

We think the court erred in not granting a new trial in this case. The evidence clearly shows that the company had placed a man at the hatchway to give notice to the hands below. The foreman testified that the hatch-tender was at the hatchway about 15 minutes before the accident, and was in the discharge of his duty. Middleton, one of the plaintiff's witnesses, testified that there were some bales that came down before the one that hit Cheney, and when they came a warning was given, and all got out of the way, and nobody was hurt. This shows that a person had been placed to attend the hatchway, and give warning to those below; but it seems that no warning was given when the bale which hurt Cheney was thrown down. The hatch-tender was usually the engine-driver or one of the hands employed to assist in loading the vessel. It appears that no special person was designated for this service, but that the hatch-tender "was indifferently from the laborers." He was engaged by the company in the same business that all the other hands of the gang were engaged in, to-wit, the loading of the vessel with freight. He was therefore a co-employe with the other persons engaged in this business; and if, when stationed at the hatchway for the purpose of giving notice to the hands below, he failed to give that notice, or if he absented himself from the hatch way, and while absent some other person engaged in the business threw the bale down into the hold, without notice to those below, and the plaintiff was thereby injured, it was in consequence of the negligence of a co-employe, and, under the law, he cannot recover for such negligence. We do not think it makes any difference whether the bale was thrown when the hatch-tender was present and failed to give notice, or whether in his absence some other co-employe threw the bale down; in either case it would be the negligence of a co-employe. It would be the negligence of the hatch-tender in not giving notice, or in absenting himself from the hatchway or, in case it was done in the hatch-tender's absence the negligence of some other co-employe in throwing the bale down without notice. While this plaintiff seems to be a poor man, and to...