Roland v. Tift

• Decision Date: 16 December 1908
• Citation: 131 Ga. 683,63 S.E. 133
• Parties: ROLAND . v. TIFT. TIFT . v. ROLAND.
• Court: Georgia Supreme Court

63 S.E. 133

(131 Ga. 683)

ROLAND .

v.TIFT.

TIFT .

v.ROLAND.

Supreme. Court of Georgia.

Dec. 16, 1908.

1. Master and Servant (§ 183^*)—"Fellow Servants"—Nature of Common Service.

Where the owner of a sawmill operates in connection therewith a private railroad for the purpose of transporting his employes from the sawmill to their work in the woods, and of hauling logs from the woods to the mill, the servants engaged in operating the log train and the servants riding thereon from the mill to their work are fellow servants; and the owner of the mill is not liable to one of the servants injured in the operation of the train by the negligence of his co-servants.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. g 373; Dec. Dig. § 183*

For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730; vol. 8, p. 7662.]

2. Master and Servant (§ 261*) — Injuries to Servant — Actions — Petition — Sufficiency.

A petition by a servant against his master for personal injuries sustained in his service alleged that the master operated a sawmill, and, in connection therewith, a private railroad for the purpose of transporting his employes from the mill to their work in the woods, and hauling logs to the mill, and that, while being transported on a log train to his work, he was injured in the wreck of the train caused by its collision with a tree which had fallen on the track; and that the negligence of the master consisted in knowingly permitting the tree, which was dead and in such a bad and defective condition that it was liable at any time to fall upon the track, to remain in such close proximity that it might and did fall on the track. The petition was defective because of the failure to allege that the servant did not know of the location of the tree and its defective condition, or could not have known thereof by the exercise of ordinary care.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 261.*]

(Syllabus by the Court.)

Error from Superior Court, Tift County; R. G. Mitchell, Judge.

Action by Joseph Roland against H. H. Tift. Judgment for defendant, and plaintiff brings error and defendant assigns cross-error. Affirmed on the main bill, and crossbill dismissed.

M. Felton Hatcher, Buie & Knight, J. J. Murray, and Rich'd Curd, for plaintiff in error.

Fulwood & Murray, for defendant in error.

EVANS, P. J. This case comes before us on an exception to the dismissal of the plaintiff's case on general demurrer. The petition was brought by Joseph Roland against H. H. Tift to recover damages for a personal injury, and contained the following allegations in substance: In February, 1902, Tift owned and was operating a sawmill. In connection therewith he operated a railroad (not chartered) for the purpose of hauling logs to the mill, to be manufactured into lumber, and transporting his employes to and fromtheir work at the mill and in the woods. Early in the morning, and before day, petitioner, who was an employe, with other employes, was being transported on a log train from the mill to the woods to begin work, and while on the way the log train ran against a tree which had fallen on the track, and was wrecked. In the collision of the log train with the obstruction on the track petitioner sustained injuries specifically described. It was not a part of the duty of petitioner to run the train, nor to look after or keep the track in order. The plaintiff at the time of the injury was riding on one of the cars of the train, being carried to his work. He was on the train by authority of the defendant, to be transported to his work, and was neither a trespasser nor a co-employe of the servants engaged in running the train. The negligence of the defendant consisted in running the train backwards, in a careless and reckless manner, without proper lights on the forward end of the train, without keeping a lookout for obstructions, and in the recklessness of the servants in charge of the train, who, upon discovery of the log on the track, attempted to break the log or throw it from the track by greatly increasing the speed of the train. It was also alleged that the defendant knew, or could have known, that the tree was dangerously near the railroad track and liable to fall on the same. This latter allegation was amplified by an amendment alleging that the defendant was negligent in permitting the tree to stand in dangerous proximity to the railroad track, and in not removing the tree from a place where it could and did fall on the track; that the tree was in a bad and defective condition, being a dead tree and liable to fall on the track at any time, all of which was known to the defendant, or could have been known by the exercise of ordinary care. It is also alleged that petitioner could not have avoided the consequences of the defendant's negligence by the exercise of proper care.

The relation of master and servant existed between the plaintiff and defendant at the time of the former's injury. The plaintiff predicates the defendant's liability (1) upon the negligence of the servants in the operation of the train; and (2) upon the negligence of the master in permitting a dead tree which was liable to fall at any time to stand in dangerous proximity to the railroad track. As to the first ground of liability: It does not appear what was the exact character of the plaintiff's work, but as it is alleged that he was being transported to his work in the woods at the time he sustained his injuries, and that the train on which he was riding was a log train, employed in hauling logs to the mill, he was probably a woodcutter, whether employed as a woodcutter or performing other work in the woods, and it clearly appears that the plaintiff's employment was connected with the operation of the sawmill. There Is an averment that the plaintiff was not a co-employe of the servants engaged in operating the train. This allegation, however, is but the statement of the legal conclusion that the relation of fellow servant did not exist between the plaintiff and the servants in charge of the train from the facts alleged. This conclusion is unwarranted. The petition discloses that the master was engaged in operating a...