Whitfield v. Louisville & N. R. Co

• Decision Date: 15 January 1910
• Docket Number: (No. 1,832.)
• Citation: 7 Ga.App. 268,66 S.E. 973
• Parties: WHITFIELD. v. LOUISVILLE & N. R. CO.
• Court: Georgia Court of Appeals

7 Ga.App. 268

66 S.E. 973

WHITFIELD.

v.LOUISVILLE & N. R. CO.

(No. 1, 832.)

Court of Appeals of Georgia.

Jan. 15, 1910.

1. Ruling on Demurrer.

The allegations of the petition failed to show a cause of action, and it was properly dismissed on demurrer.

(Syllabus by the Court.)

2. Negligence (§ 136^*)—Pleading — Sufficiency of Petition—Question for Court.

While negligence, as a question of fact, is to be determined by the jury, provided a prima facie case is made, whether the allegations of the petition make a cause of action is for the court.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]

3. Master and Servant (§ 86*)—Injuries to Servant — Liability of Master — What Law Governs.

In an action by a servant for injuries received in Tennessee, his right to recovery depends upon the law of that state.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 137; Dec. Dig. § 86.*]

4. Evidence (§ 80*)—Presumptions — Existence of Common Law in Sister State.

In an action by a servant for injuries received in another state, where no statute of that state relating to the subject is pleaded, it will be presumed that the common law defining the relative rights of master and servant is in force in that state.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. § 80;* Common Law, Cent. Dig. §§ 14-16.]

5. Master and Servant (§ 177*)—Injuries to Servant—Negligence of Pellow Servant—Liability at Common Law.

At common law, a servant cannot recover from the master for injuries caused by negligence of a fellow servant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 352; Dec. Dig. § 177.*]

6. Master and Servant (§ 198*)—"Fellow Servant"—Boss of Crew—"Vice Principal."

A boss of a crew, loading rails onto a flat car, engaged in the same work as the crew, although he may have direction of it, is not a "vice principal" of the master, but a mere "fellow servant" of the members of the crew.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. § 198.*

For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730, vol. 8, p. 7662; vol. 8, pp. 7313-7316, 7827.]

7. Master and Servant (§ 185*)—Injuries to Servant—Negligence of Fellow Servant.

A member of a crew, loading rails onto a flat car, could not recover for injuries caused by the negligence of other members of the crew in causing the end of a rail to be thrown against the car, which resulted in the rail rolling onto him; it being the negligence of his fellow servants.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 185.*]

8. Master and Servant (§ 204*)—Injuries to Servant—Assumption of Risk—Knowledge of Danger.

Where a member of a crew, loading rails onto a flat car, had equal opportunity with the master of knowing the danger of attempting to throw a rail on the car without an adequate number of men for that purpose, and misconceived the amount of physical strength necessary to throw the rail on the car, resulting in his injuries, the master was not liable therefor, under Civ. Code 1895, § 2612, providing that, in suits for injuries from the negligence of the master in failing to comply with duties imposed by the preceding section (including the duty to furnish competent servants), it must appear that the master knew or should have known the facts constituting such failure, and that the servant injured did not know and had not equal means of knowing such facts, and in the exercise of ordinary care could not have known them.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 204.*]

Error from City Court of Cartersville; A. M. Foute, Judge.

Action by N. G. Whitfield against the Louisville & Nashville Railroad Company. Judgment of dismissal, and plaintiff brings error. Affirmed.

Whitfield sued for damages on account of personal injuries received by him while employed by the defendant company in the state of Tennessee. His petition makes substantially the following case: He was employed as a common laborer on a work train of the defendant, and on the day when his injuries were received he was at work in a crew loading rails on a flat car, under the direction and control of a foreman or boss. The work of loading rails is very dangerous, and required the direction of an experienced foreman or boss. The point where the plaintiff and his fellow workmen were loading the rails on the cars was in a narrow cut, the sides of which were very close to the cars; and by the direction of the foreman the plaintiff was at one end of a rail, performing his part of the work of lifting and placing the rail upon the car, and had been so engaged all of that day, being assisted by an ample number of men at his end of the rail to handle the rails expeditiously and with safety to all. About the middle of the day, and while so engaged in his work, he was ordered to remain at the end of a certain rail, and some of his fellow servants, engaged in the same work at the same time and place, were negligently shifted by the foreman from the end of the rail where the plaintiff was at work towards the other end of the rail, to better assist the men who were working at the other end to lift their end sufficiently high to place it upon the car. Plaintiff was unaware of the fact that he was thus left in a position where he would be unable, with the combined efforts of his fellow servants, to place the rail upon the car without hurt to himself, and without realizing that an insufficient number of men were left at his end of the rail, when the order was given he stooped down and assisted in picking up his end of the rail, lifted it up, and endeavored to throw the rail upon the car, acting in conjunction with his fellow workmen. On account of the insufficient number of men at his end of the rail, he and his fellow workmen could not throw the rail high and far enough to safely and securely place the end of the rail next to him upon the car. The other end of the rail was thrown successfully, and "the end of the rail next to him, when thrown, having missed the car by reason of the negligence of his co-employes, caused the rail, without fault on his part, to roll down upon him, it being impossible for him to extricate himself in time, " and caused the injuries complained of.

He charges that the defendant "company was negligent, in that it did, through its foreman, negligently shift, from the end of the rail where he was at work, the workmen who, had they been allowed to remain there could have successfully and safely placed the rail on the car; that it was negligent through its foreman in giving the order to the men handling the rail to throw it upon the car before it had been lifted high enough for that purpose, the foreman being in a position where he could have known whether the men were ready before he gave the order, and the plaintiff being in a position where he could not know whether the men were ready to receive the order to throw the rail upon the car, as he was standing in such a position that he could not see what his fellow servants were doing; that it was the duty of the defendant, through its foreman, to see and know that there was a sufficient number of men at all points along the rail to successfully and safely place it upon the car; that when the order was given by the foreman to the plaintiff and his fellow workmen to throw the rail upon the car the emergency was upon him, and he, in obedience to the order, endeavored to throw the rail, assuming that the other men would throw the rail from them, as they were bound to do, using all the strength he could in his efforts; that in the exercise of ordinary care he was compelled to throw the rail to prevent it from falling on him and crushing him to the earth, and that this emergency was brought about by the negligence and carelessness of the defendant, through its foreman, in negligently...