Southern Ry. Co. v. Taylor

• Decision Date: 17 February 1912
• Citation: 73 S.E. 1055,137 Ga. 704
• Parties: SOUTHERN RY. CO. et al. v. TAYLOR.
• Court: Georgia Supreme Court

73 S.E. 1055

137 Ga. 704

SOUTHERN RY. CO. et al. v. TAYLOR.

Supreme Court of Georgia

February 17, 1912

Syllabus by the Court.

A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. Civil Code, § 3131; Stewart v. Seaboard AirLine Ry., 115 Ga. 624, 41 S.E. 981; East Tenn. R. Co. v Reynolds, 93 Ga. 570, 20 S.E. 70.

(a) In order for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his master, or his master's representative, the servant must show that the order was a negligent one under the circumstances. If the order was negligent, and the servant knew of the peril of complying with it, or if he had equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then he cannot recover for an injury received in complying with the order. 1 Labatt on Master and Servant, § 433 et seq.; Central R. Co. v. Kenney, 58 Ga. 486; Worlds v Georgia R. Co., 99 Ga. 283, 25 S.E. 646; Daniel v Forsyth, 106 Ga. 568, 32 S.E. 621; Hendrix v. Vale Royal Co., 134 Ga. 712, 68 S.E. 483, and citations.

Civil Code, §§ 3130, 3131, in regard to the master's duty to employ competent servants and furnish proper machinery, were not applicable in their entirety to the facts of this case but as the judgment must be reversed on another ground, it is unnecessary to decide whether the giving of such sections in charge to the jury would require the grant of a new trial.

Error from Superior Court, Gordon County; A. W. Fite Judge.

Action by R. F. Taylor against the Southern Railway Company and another. Judgment for plaintiff, and defendants bring error Reversed.

Taylor sued the Southern Railway Company and Avery for personal injuries. There was a verdict for the plaintiff against both defendants, whose motion for a new trial being overruled, they excepted. Upon the trial the evidence submitted in behalf of the plaintiff tended to show the following facts:

The plaintiff was 45 years old at the time he was injured, was a bridge carpenter, and had been engaged in work as such for off and on about 20 years. Avery was superintending and directing the work in reconstructing a trestle on the railway company's road. The plaintiff was working on the trestle with others, under Avery. A plank was needed at the place where the work was being done by the plaintiff and others. He testified as follows: "Mr. Avery told us he would look us up one; so he went off, and me and several went on back with him, and he pointed this plank out, and told us to go to the end of the trestle and get a rope and tie to it and lift it to the top, so we could put it down across that. It was Mr. Avery that directed us to go and get this particular plank. To get it we had to go down there to it and tie a rope to it. I reckon it was 3 or 4 feet below the top of the trestle to where this plank lay, somewhere along there below the top surface. It was on the side of the bent at the outside of the ballast. *** In getting down off the bridge, I got down right here on this cap [referring to a model of the trestle], and had my right side, my face, turned towards the trestle, you know, and caught around the tie and cap too, and put my right foot on the right edge of the plank, and then put the other one down, you know; straightened up to get in position on the plank, and it turned with me and threw me. What caused the plank to turn with me was not having a full bearing; did not have enough bearing here, you know, over the plank, the width of the plank. Before I got down on it, I could not see from where I was that it did not have a full bearing. It lapped over, you know, and I could not discover it. It was standing out straight. You could not tell about it from the position I would have to get down on it. *** The plank rested on the sill, and did stick out over it, and covered it. You could not see under the plank. If you was down under the plank, you could tell what was under it. I could not. *** In getting down on that plank, there was no place to get down on it other than the place I did get down. I could not see any other place, and there was no other place. That was a safe place to step down upon. You know, this scaffolding was the only place you...