Smith v. Western & A. R. Co

• Decision Date: 03 March 1910
• Citation: 134 Ga. 216,67 S.E. 818
• Parties: SMITH v. WESTERN & A. R. CO. WESTERN & A. R. CO. v. SMITH.
• Court: Georgia Supreme Court

67 S.E. 818

134 Ga. 216

SMITH

v.WESTERN & A. R. CO.

WESTERN & A. R. CO.

v.SMITH.

Supreme Court of Georgia.

March 3, 1910.

(Syllabus by the Court.)

1. Master and Servant (§ 88^*)—Existence of Relation—Apprentice Fireman.

If a person under due authority from a railroad company goes upon one of its engines hauling a train, for the purpose of learning the duties of a fireman, and performs services for the company in order to gain such experience and knowledge of the work as will render him competent to act as a regular fireman anil to receive pay as such, thus becoming what is called "a learner fireman" or "an apprentice fireman, " he is, while thus acting, a servant of the company, although he receives no pay during the time of such preparatory service, and as such servant he is a fellow servant with the regular servants employed in the operation of the train on which he is engaged. Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, S3 Pac. 439, 7 Am. & Eng. Ann. Cas. 636.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 144; Dec. Dig. § 8S.»]

2. Master and Servant (§ 88*)—Existence of Relation.

If only certain agents or employes of a railroad company have the authority to select "learner" or apprentice firemen, and to permit them to go upon the engine of the company with a view to learning the duties of a fireman, and some other employs of the company, without authority, issues a permit to a person for that purpose, his going upon ap engine of the company under such a permit would be unauthorized; and if, while wrongfully there, he should be injured by the negligence of the engineer in running the engine, he would stand as a trespasser, and not as an employe.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 148; Dec. Dig. § 88.*]

3. Master and Servant (§ 88*)—Existence of Relation.

Under such circumstances, if the engineer and conductor of the train permitted such person to go upon the engine and act as a "learner" fireman, they having no authority to grant such permission or to select such apprentice fireman, his presence upon the engine would not thereby become lawful, and he could not claim to be properly there as an employe of the company.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 148; Dec. Dig. § 88.*]

4. Master and Servant (§ 228*)—Injury to Servant by Fellow Servant—Contributory Negligence—Statutes.

If the plaintiff's husband be found to have been an employe of the company, the rule laid down in Civ. Code, § 2323, which provides that if the person injured is himself an employe of the company, and the damage was caused by another employe, without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery, would apply; but the interpretation of that rule would also apply to him, so that, if he were guilty of negligence contributing in any substantial degree to his own injury, he could not recover, the cause of action having originated prior to the act of 1909 (Acts 1909, p. 160).

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 670; Dec. Dig. § 228.*]

5. Sufficiency of Evidence.

The evidence was such as to authorize the court to submit to the jury the question as to whether plaintiff's husband at the time of his death was a trespasser or an employe of the defendant, and it was error on the part of the presiding judge to fail to charge appropriate law on the subject of master and servant relative to a railroad company and its...