GARY
A. J.
The
appeal herein is from an order of nonsuit. The action is for
damages alleged to have been sustained by the plaintiff, at a
point on defendant's railroad near Toccoa, in the state
of Georgia, while engaged in the occupation of flagging,
through the negligence of the defendant. The complaint
alleges substantially that on June 1, 1900, the plaintiff
was, and for three weeks preceding had been, in the employ of
defendant, and engaged in the repair of a trestle near
Toccoa, Ga., under the orders and direction of B. O. Worley,
bridge foreman; that it was the duty of Worley, and it had
been his custom, to send out flagmen to warn approaching
trains of the dangerous condition of the trestle, and it was
the duty and custom of those in charge of the trains so
warned to stop their trains, and this had been done for three
weeks during all of the time repairs were being made on the
trestle; that upon the occasion in question the plaintiff was
ordered by Worley to proceed about a mile in the direction of
Toccoa for the purpose of flagging approaching trains; that
he had been previously ordered to do similar work on the
south side of the trestle, and, when he came back to the
trestle from such previous work, he was not allowed time to
rest before going out again, as he was directed, and, after
placing the flag and torpedoes in proper position, he became
so overpowered by the heat and exertion that he fell
exhausted and unconscious upon the track; that while lying in
this unconscious condition he was struck by a
south-bound train and seriously injured; that his injuries
were caused by the negligence of the servant of the defendant
in not exercising due care in approaching a known dangerous
place, and a place where he had been accustomed to have
trains flagged, and in failing to keep a proper lookout along
the stretch of track. The answer denied negligence, and
pleaded plaintiff's contributory negligence.
At the
close of plaintiff's testimony, the defendant moved for a
nonsuit on two grounds: (1) That there is no testimony
tending to show the negligence alleged in the complaint; (2)
that the accident occurred in Georgia, and that, in the
absence of proof, it will be presumed that the common law
prevails there.
His
honor the presiding judge granted the following order:
"The first ground is overruled. The second ground is
sustained. It appears from the evidence that the accident
occurred in the state of Georgia. The law of that state must
govern. In the absence of proof as to that law, the
presumption is that the common law prevails there. At common
law a master is not responsible in damages to one servant
injured by the negligence of a fellow servant. If there were
any negligence at all in this case, it was that of the
engineer of the train which struck the plaintiff. As it
appears that the plaintiff and the engineer were engaged in
the duties, respectively, of their employment, I hold that
they were fellow servants. It is therefore ordered that the
motion be granted, and that the complaint be dismissed, with
costs."
The
plaintiff appealed upon the following exceptions:
"(1) The circuit judge, having held that, in
the absence of proof as to the law of the state of Georgia,
the common law prevails there, erred in not holding further
that the presumption existed that the common law of the state
of Georgia is the common law as declared by the
Supreme Court of the state of South Carolina.
(2) The circuit judge erred in holding that at 'common
law a master is not responsible in damages to one servant
injured by the negligence of a fellow servant,' whereas
he should have held that, under the common law as established
by the courts of this state, the master is responsible in
damages to one servant injured by the negligence of a servant
of the same master engaged in a different department of
labor, and for the further reason that the doctrine of fellow
service is not a common-law doctrine.
(3) Because the circuit judge erred in holding that the
engineer of defendant's train, and the plaintiff, a
laborer on one of defendant's bridge gangs, were fellow
servants, whereas he should have held that the said employés,
being engaged in different departments of labor, and not
being associated in the work which each was employed to do,
were not fellow servants.
(4) Because, inasmuch as the fellow-servant doctrine is based
upon the doctrine of assumption of risk, the circuit judge
erred in not submitting to the jury the question as to
whether the plaintiff had assumed the risk of injury from the
negligence of the servants of defendant.
(5) Because the circuit judge erred in holding that, 'if
there were any negligence at all in this case, it was that of
the engineer of the train which struck plaintiff,'
whereas he should have held that the complaint alleged and
the testimony tended to show that the vice principal of the
defendant, to wit, the bridge-gang foreman, was negligent in
ordering plaintiff to perform an extrahazardous work without
notifying him of the increased danger to which he was
subjected, and that plaintiff's injuries resulted from
such negligence on the part of the said bridge foreman, or
from the concurrent negligence of the said bridge foreman and
of the engineer of train which struck plaintiff.
(6) Because the testimony showed that the plaintiff had been
employed by the defendant as a laborer on a bridge gang on defendant's road, but that he had been
ordered by the foreman of the bridge gang, on occasions, to
flag trains in the absence of the regular flagman of the
bridge gang, and, on the occasion alleged in the complaint,
had been ordered to flag a train under particularly dangerous
circumstances. The circuit judge, therefore, should have left
it to the jury to say whether or not plaintiff had assumed
the increased risk by flagging under the circumstances
alleged, to which he was subjected by the orders of the said
foreman.
(7) Because the foreman in charge of the bridge gang had
authority to order the plaintiff's actions, the said
foreman representing his master in the said work. The circuit
judge should have left it to the jury to say whether the
plaintiff's injuries resulted from the risks that he had
contracted to assume, or were such as resulted from an
increased risk that he was compelled to assume by reason of
the order of the servant having authority to make the same.
(8) Because, the plaintiff having been ordered to perform
work other than that he had contracted to perform when he
entered defendant's employment, the circuit judge erred
in not submitting the following questions to the jury: (a)
Whether the plaintiff was acting within the scope of his
employment at the time he was injured, or whether he was
ordered to perform work outside the scope of his employment
by one who had authority to direct his actions; (b) whether
the work he was ordered to perform was more hazardous than
the work he had contracted to perform; (c) whether the danger
of the work plaintiff was ordered to perform was so manifest
that a person of ordinary prudence, situated as plaintiff
was, would have realized the danger, and not have undertaken
it."
The
defendant gave notice that it would ask this court, in case
it became necessary, to sustain the order of nonsuit upon the
additional ground that the presiding judge erred in
overruling the first ground of defendant's motion.
Before
proceeding to consider the questions presented by the
exceptions, it may be well to state some general
principles affecting this...
