Southern Railway Co. v. Johnson , 114 Ga. 329 ( 1901 )

Little, J.

We are of the opinion that the petition set out a good cause of action, and that it was sufficiently supported by the evidence; and the conclusion follows that the trial judge committed no error in refusing to dismiss the petition, and in overruling the motion to nonsuit. Our Civil Code, § 2323, in declaring the law of the liability of railroad companies for injuries to persons or property, provides that if the person injured is himself an employee of the company, and the damage was caused by another employee, and without fault on the part of the person injured, his employment shall be no bar to recovery. In the case of Georgia Railroad Co. v. Miller, 90 Ga. 571, and in numerous other cases not necessary to cite, this court ruled expressly that a railroad company is liable for injuries to the person of an employee occasioned by the negligence or misconduct of other employees of the company. It is contended that the injury to the defendant in error, occasioned as it was, creates no liability on the part of the railroad company; that the defendant in error, by his employment, assumed the risk of such injuries. We think not. The petition alleged and the proof showed that the defendant in error, at the time the injuries were sustained, was not at fault. The defective work which was the cause of the injury was not his, but was done by others, at practically another place. The risks which an employee of a railroad company necessarily assumes as incident to his occupation are not those which are occasioned by the incompetence or negligence of other employees. On the contrary, as is seen above, the company is liable to an employee who without fault is injured by the careless or negligent act of another employee. Nor can it be said, under the evidence, that.the injury was occasioned by amere accident ; for if the slag had been properly laid on the road-bed by the other employees engaged in that business, it would not have been thrown from the track, nor the defendant in error injured. The evidence, in our opinion, fails to disclose that the person injured did not exercise ordinary care in protecting himself from injury. He certainly went to a point which would have been safe, in getting out of the way of the approaching train, had it not been that the slag had been left too high on the road-bed. He had no cause to expect that the slag had been improperly placed, and was not, therefore, under obligation to seek a place of safety, against that contingency.

It was urged by the plaintiff in error that the case of Clardy v. Southern Ry. Co., 112 Ga. 37, in principle, controls this case. We think not. In the Clardy case the plaintiff was a pedestrian who at most had a license to use the right of way of the railroad company as a foot-path. While thus using the right of way he was injured by a stone which was dislodged from the road-bed and hurled against him by a passing train. This stone was a part of the ballast of the track, and was dislodged from its place and thrown against the plaintiff by the moving train. The principle in that case, however, is different from the one which should govern this. It was claimed there that the railroad company owed him the duty of placing the material used in ballasting its track so that it would not be thrown against him while using the right of way as a foot-path. While the court in that case said that the dislodgment of the stone was a mere casualty, it was so because itdid not appear that the stone had been improperly placed in the first instance; as an evidence of which it was shown that other trains had passed over that spot without dislodging it from its place. On the further question of the liability of the company to a licensee, for such an injury, it was ruled that one who uses the railroad right of way as a foot-path is chargeable with knowledge of the use which the company ordinarily makes of its property of this kind, and necessarily takes the risk of casualties occasioned by such use. In the present case the defendant in error was not a mere licensee. He was an employee, and was exactly where he should have been at the time he was injured. Not only so, but the slag which was thrown from the track and struck him had been improperly placed by other employees. The evidence does not show that other trains had passed over the road-bed at that point subsequent to the placing of the slag in the condition it was at the time the injury was caused, and it clearly appears that had this slag been properly placed no portion of it would have been thrown" from the track. In the Glardy case it was a casualty when a rock which formed part of the ballast of the road-bed was dislodged and thrown against the passer-by, when no fault appeared on the part of the company in the construction of its road-bed, and when other trains had repeatedly gone over the same part of the road without bringing about such a result. The facts of the present case, however, show that the injury resulted from the improper work of certain employees of the company in placing the slag. If it had been properly placed and other trains had passed the spot without dislodging it, a question similar to that in the Glardy case would have been presented. But inasmuch as it sufficiently appears that the injury was occasioned because of the defective work of other employees, and that the plaintiff was injured as the consequence of that improper work, and that he himself was not in fault, he was entitled to recover.

Judgment affirmed.

All the Justices concurring.