Barry v. McGhee , 100 Ga. 759 ( 1897 )

Little, Justice.

The petition in this case sets ont the facts, that on the 11th day of November, 1892, petitioner was in the employment of McGhee and Link, who were receivers in •charge of and operating the railroad of the E. T., Y. & G. By. Co., and that they were appointed by order of the United States circuit court held in and for the State of Tennessee; that the. duties of petitioner under such employment were those of switchman in the yards conducted by the receivers in the city of Macon. Eie alleges that while he was on a flat car in the discharge of his duties, the engine to which the cars were attached suddenly jerked the cars and threw him to the ground, and that the engineer, in reversing and putting steam on the locomotive, ran the cars over him and he was permanently crippled, bis feet being crushed and mangled; that he was riding on the rear car of those attached to the engine, after he had made an uncoupling of two cars; that he himself was without any fault, and that the injury was occasioned by the fault and negligence of the defendants in improperly moving the train with a sudden and improper jerk, in reversing the engine attached to the train, in allowing the train to run back on petitioner, and not having brakes on the engine attached to said train of cars. • There are further full and specific allegations in the petition touching the injuries of the defendant, his incapacity to labor thereby, and .other maters which shioiw the serious and permanent injury occasioned to him by being thrown from the car and run over, which are set out in the preceding official statement of facts. To this petition a demurrer was filed! and sustained by the court, and the case dismissed. The-error alleged to have been committed is the sustaining of the demurrer to the petition.

1. At common law there could be no recovery against the principal for injuries sustained by an agent from the-negligence or misconduct of other agents of the principal,, engaged in the same business; and this rule is generally in. force in the State of Georgia. Civil Code, §§2610, 3030.. This rule of the common law has been changed by the' statute in Georgia, in the case of injuries sustained by an employee of a railroad company, when he was without, fault or negligence himself and such injury was caused by an'otiher employee. Civil -Code, §2323. It is provided by tihe last secitíion referred to, tihat tibe 'employment by a railroad company of the person so injured shall be no bar to a. recovery of damages; and this section has been construed to-embrace all injuries, including such as are sustained from 'the running of cars and engines. In the case of Henderson v. Walker, 55 Ga. 481, it was held by this count that in a suit against the receivers of a railroad company, filed by an employee lof such receivers to recover damages for injuries sustained itihnougjh -.tibe negligence of a coemployee,, the rule fixed by section 2323 of the Civil Code, which excepted from tiie -dominion law rule- the right of an employee to recover against a railroad company where the injury was occasioned by the negligence of a coemployee, did not extend to receivers of railroads. It was there held, that the receivers did not represent the company, but the court;, that the property and franchises of the company had been, seized and the court was for the time being the governing-power; that the right of an employee to recover under' such circumstances against a railroad company was a statutory right, and in that case there was no privity between the company and the plaintiff; that he was not the servant of the company, nor was the company his master; and. that, not coming within the class provided for by the statute, as to him (the general 'Common law rule prevailed, >amd such employee could mfoit have a recovery against the receivers where ithe injuries were sustained by the negligence of a. fellow-servant in the same service. That case has been followed by subsequent rulings of this court in the cases of Thurman v. Cherokee Railway Co., 56 Ga. 376; Youngblood v. Comer, 97 Ga. 152; Brown v. Comer, 97 Ga. 801; Robinson v. Huidekoper, 98 Ga. 306, and coritrofe the case-(at bar. The General Assembly, (by an act approved December 16th, 1895 (Acts 1895, p. 103), further changed the- • common law rale, amd provided that the liability of receivers, operating railroads in -this State should be the same as the-liability fixed by the statute governing the operation of’ railroad companies in this State for injuries to persons in their employ caused by -the negligence of coemployees. So-that the provisions of section 2323 apply, since the passage of that act, to receivers operating railroads as well as-to railroad companies. That act, however, was not in force-at the time the injury in this case occurred, nor when the-suit was brought, and at the time of such injuries the receivers were n)ot liable -to the plaintiff for -the damages--, which he sustained by reason of the negligence of his co-employees, under the facts pertaining to such injuries asset out in the petition.

>2. It is further insisted, however, that, properly construed, the petition sets out a cause of action against the-receivers, because it is alleged therein that the damages-were occasioned by tbe want of brakes upon the engine attached to the cars which were being moved, and that the injuries sustained because of such defect were.in no way dependent upon any fault or negligence of a coemployee, but that 'the receivers are liable to the plaintiff directly' therefor. A reference to the petition shows that the circumstances which occasioned the injury are very fully set out in detail, and that such details show negligence and. want of care on the part of the engineer in moving the ■cars so as to cause a sudden jerk and in reversing the engine attached to the cars, and allowing it to run back on and over the petitioner, and the fact of defective machinery is referred to only in an incidental way. In summing up in paragraph 15 of the petition, after these acts ■of negligence have been carefully set out and averments made that the injuries were in no way occasioned by the ■fault or negligence of the petitioner, he alleges that such injuries were due entirely to the fault and negligence of •the defendant in improperly moving the train with a sudden and improper jerk, in reversing the engine attached to' .said train of cars, and in allowing the train to run back on •petitioner, and m not hmmg bmhes on the engine attached to said train of oars. As put in the declaration, 'the moving of the train with a sudden and improper jerk, the •reversing of the engine and allowing it to run back on the petitioner, was not caused by the want of brakes upon the ■engine, but such improper handling of the train and reversal of the engine are set out as independent acts of negligence which caused the injury, and coupled with such .acts is (the aveannenit itihlalt the 'defendants were negligent and in fault in not having brakes on the fengine. We think, therefore, the petition in this case cannot be construed as .an action to recover damages against the defendants for injuries sustained by petitioner from the moving of the train which resulted as a consequence of the absence of brakes on the engine. On the contrary, the direct cause of injury, as set out, is the negligent acts of the person in charge of the engine in improperly moving it and handling it; and construing all the allegations of the petition together, the efficient cause of the injury, as there set •out, is 'the fault ,and negligence of .tihie person moving the train; and if the law in force at the time sanctioned a recovery against the receivers, the petition makes a case ■which, if supported by proof, would entitle him to recover such, damages as he might show were sustained; but being' an employee, and the petition not making any avermentsas to the injuries except such as are directly attributable-to the fault and negligence of a coemployee, he is not entitled to recover under the rules of law herein announced; and for this reason the judgment of the court below in-sustaining the demurrer to the petition, on the ground that, no sufficient cause of action was set forth, is not error, and accordingly is

Affirmed.

All the Justices concurring.