Cooper v. Mullins , 30 Ga. 146 ( 1860 )

By the Court

Stephens, J.,

delivering the opinion.

1. The general rule is, that whoever is injured by the negligence of a servant in his master’s business, is entitled to redress from the master. The railroad, in this case, claims an exception against other servants of the same master. Such an exception has been recognized in some modern cases, but when confined within the reason on which it is founded, it can have no application to this case. That reason is one of public policy to secure to the public a more faithful service from employees on railroads, steamboats and other branches of business wherein the safety and property of the public are involved, by making it the interest of each one of such employees to look after and encourage the carefulness and fidelity of all the rest. This reason can have no application to employees whose situations allow them no connective influence over each other. The exception operates as a penalty, and to impose the penalty when there is no opportunity of exercising that supervising care which it is intended to enforce, is sheer cruelty. In the case of Seudder vs. Wood-bridge, 1 Ga. Rep., 195, this Court held that the exception did not extend to slaves, because slaves from their status were incapable of influencing their associate employees towards fidelity and care in the common business. Nor can it be extended to other employees who from any cause are not in a situation to exert such an influence on their fellows. It follows, therefore, that the cases to which this exception applies, are only those where the servant receiving the injury is engaged with the servant inflicting it, in a common business where he has an opportunity to exercise a preventive care over his negligence. In this case the person whose negligence produced the injury was on one train of cars, and the person who was injured was on another train, and had not the slightest possible opportunity of preventing the other’s carelessness. To hold the employees on different trains of cars responsible for the carefulness of each other seems to me about as reasonable as it would be to exact such a mutual responsibility between employees on different railroads, or in different quarters of the earth, because they might happen to be all servants of the same master. The reason of the exception is to make each employee a help to the carefulness of the rest, and where thát object cannot be accomplished, the exception ought to cease, and the general rule of giving redress against the master to everybody who may be injured by the negligence of his servant in the performance of his business ought to prevail. But it is not even true that the two employees in this case were servants of the same master. The argument of the case mainly turned on this point, and therefore I will devote a few words to it, though notice of it is rendered unnecessary by the preceding view. One of the engineers was in the pay of the Western and Atlantic Railroad, and the other, Mullins, who was injured, was in the pay of the Georgia Railroad, and at the very time when he was hurt was doing a job for which the Georgia Railroad, and not himself, was to receive pay from the other road. The Georgia Road furnished to the other an engine and engineer, that is to sáy, a team and driver for a single occasion.

Whose servant was that driver? In the case of Laugher vs. Pointer, 5 Barn & Cressw., 547, a stable-keeper had hired a team and driver to another person for a day, and the question was, whose servant was the driver ? The Court of King’s Bench were equally divided, but Judge Story, in a note to sec. 4536, of his work on agency, says that all the subsequent eases have followed the opinion of those who held that the driver was the servant of him who had furnished him, and in whose pay he was, and not of him who had him but for a single occasion, who had no part in selecting him, and who was under no obligation to pay him. The parallel between that case and this seems to be complete. For these reasons a majority of the Court think that the doctrine relating to servants of the same master is not applicable to this case, and that the charge asked on it might have been refused instead of being merely modified as it was by the Judge.

2. The errors assigned upon the refusal of the Judge to charge that some pecuniary damage must be proven, and upon the excessiveness of the damages found, may be considered together, for the same view covers both. Surely, there ought to be some compensation for the suffering endured. The pain from the wounds must have been great, and the dread of the approaching collision between the two engines, though brief, must have been terrible. Mental agony has been known to turn a head gray in a night, and gray hairs are often but the effervescence of some great mental anguish. Shall all compensation be denied to such, suffering merely because there can be no adequate compensation? "We think not.

3. The ground that the verdict was contrary to the evidence rests upon its conflict with the testimony of Cole, tending to show that the accident was caused partly by negligence of the plaintiff himself. The engine which was in the wrong place had been put there by Cole’s order, and he therefore testified under a strong motive to lighten the blame in that quarter and fix it upon Mullins. He made certain signs to Mullins, and Mullins made signs back to him, and the only important part of his testimony consists of the conclusions which he drew from Mullins’ signs, as to the information which Mullins had got from his signs. Is it wonderful that the jury did not place implicit reliance upon such conclusions of a witness so situated ?

Judgment affirmed.