Dunlap v. Richmond & Danville Railroad , 81 Ga. 136 ( 1888 )

Bleckley, Chief Justice.

1. The engineer, being employed by the month to run trains upon the road of his employer, could have declined to go upon another road to run the trains of the company owning that road. He consented to go for temporary service, went accordingly, and was injured by reason of the bad condition of the track, and the want of adaptation of the engine (which belonged to his employe!’) to the track in its actual condition. It is not alleged that the employer knew either of the bad condition or the want of adaptation. Eor aught that appears, the jiarties were on equal terms as to their knowledge or information touching, both these matters. Had the engineer needed information, more than he had, he should have obtained it or declined to go. The question is, whether he had a right to take for granted, as against his employer, that the track of the other company was not defective, but in a fit condition to be used under this particular engine with safety. Bid the employer owe to him the diligence of seeing that this was so, before requesting him to go, and accepting his con-seat to do so ? The employer could not by authority of the contract order him to go, for the duty of going was not embraced in the contract of employment. Had he objected and been discharged for it, his wages for the unexpired month would have gone on notwithstanding.

We think the case is much like that of a farmer sending his hired man to plough for a neighbor a few days. If the neighbor’s field is not safe, has sink-holes in it, for instance, or the plough is not adapted to the soil, and from one or both of these causes the hired man is injured, his employer, it seems to us, would not be to blame and would not be responsible, unless he knew the facts which exposed his servant to unusual peril, and concealed his knowledge or failed to communicate it.

2. As to the theory that the engineer had a right to assume that his employer had leased the line of the other company, or was actually using it as a part of one and the same system, because of the special facts alleged in the declaration, all of which are indicated in the second head-note, we think it unsound, because the two companies and their lines were prima facie separate and distinct. The minor or dependent company, the one upon whose line the injury occurred, was chartered by a public law of the State, and was in actual possession and use of its own franchises, and for aught that appears the actual state of things would have been made known to the engineer had he used even slight diligence in making inquiry. Tie was not misled by any had faith on the part of his employer, and though he may have reasoned logically from the premises immediately before him, the employer is not bound by the erroneous conclusion to which these premises, disconnected with others which ought to have been considered, conducted his mind. By merely asking a question, he could most probably have ascertained the truth. The two companies bore difieren! names, and a public law of the State put him upon notice that they were not united by charter. As to any union by contract, that was not matter to be reasoned out from appearances, but to be ascertained by inquiry at proper sources of infoi’mation, there being no representation or misrepresentation of the fact by the employer, or indeed, so far as appears, by any one.

The court did not err in sustaining the demurrer to the declaration, there being no cause of action set forth as against the defendant. "What redress might be obtained from the other company is not now for consideration. It seems that question has been referred to another tribunal.

Judgment affirmed.