McDuffie v. Ocean Steamship Co. , 5 Ga. App. 125 ( 1908 )

Powell, J.

(After stating the facts as above.)

1. In the case of Brown v. Rome Machine Company, post, 142 (62 S. E. 720), we go at some length into the rationale of why “the law imputes certain assumption and imposes certain duties “upon each of the parties to the relationship created by a contract •of employment, and it will not be necessary now to elaborate these propositions. It is sufficient to say that if the nature •of the master’s work is complex, and involves the presence and ■co-operation of a large number of men, so situated that individual independent action on their respective parts would render the doing of the work unsafe, the law imposes on the master the duty •of organizing and maintaining a system of works by which reasonable safety can be secured. Frequently this is accomplished largely through rules and regulations promulgated and enforced by the master. In that event the doing of the work according to the .rules and regulations is regarded as mere detail, and those doing it are considered as fellow servants, though some of them are superior servants arid others inferiors, though some are bosses and ••others common laborers. Since transitory increases of'risk and ■exposures to danger are reasonably to be anticipated, even under .a prudently organized system of work, the servant, is usually held “to have assumed the risk as to such dangers, when they have not ■occurred through some special negligence of the master.

2. The master may not see fit to promulgate rules and regulations, or the work may present so many and various phases as to .make it practically impossible for him to prepare any set of rules .and regulations that would be sufficiently comprehensive and adequate to fulfil his duty in respect to creating and maintaining a ■safe system of work; and in this event he is required, either •through himself or some person deputized by him, to give super-vision to the work as it is done, and to provide, by special orders ■or directions, against the exigencies as they arise. “If, therefore, he chooses to leave to an employee the regulation of matters which he ought to have provided for by special rules, such employee will be regarded as his representative.” Labatt’s Master and Servant,. §574. If this representative handles an exigency negligently, thenegligenee is the master’s.

3. The courts of this State are now thoroughly committed to-the proposition that an employee, in performing one of the nondelegable duties of the master, is not a fellow servant with the other laborers who are merely doing the work. Moore v. Dublin Cotton Mills, 127 Ga. 614 (56 S. E. 839); Dennis v. Schofield, 1 Ga. App. 489 (57 S. E. 925); Van Dyke v. Menlo Fruit Co., 129 Ga. 532 (59 S. E. 215). The rank or title of the employee is immaterial, in the ultimate consideration of the question. It is a, negligent act chargeable against the master, if he, or the agent to-whom he has deputed the duty of giving orders relating to the-manner in which the work shall be done, gives an order by. which, a servant’s safety is imperiled. Labatt’s Master and Servant, §114 ^ Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 263 (58 S. E. 249); Moore v. Dublin Mills, supra; Taylor v. Georgia Marble Co., 99 Ga. 517 (27 S. E. 768, 59 Am. St. R. 238); City Council of Augusta v. Owens, 111 Ga. 464 (36 S. E. 830).

4. Orders as to how the work shall be done, even though it be-a particular piece of work, stand upon a different footing from mere work signals, and must be distinguished from them. Orders are generally the act of the master, and the work signals the act. of fellow servants. Certain features of the case at bar illustrate, this difference. The steamship company, through Knox, gave suclx an order when he directed that the laborers should proceed with, the work of turning the bridge iron without waiting for the plaintiff, and his colaborer at the truck, to get out of the way; for that was a command relating to the manner, in which the work should be done, determining, as a part of the system, the speed,, the haste, or lack of haste, in which the work should be carried on. When the "header,” or -gang boss, said "turn,” he gave a work signal, — a mere detail in the execution of the work, — enabling-the.men thereby to act in concert.

5. There was enough in the evidence to have warranted the-jury in finding that the work was complex and of such a nature that it could not be carried on in reasonable safety without the-establishment and maintenance of a system; that instead of creating a general and comprehensive system, based' on rules and regulations, the master undertook to secure this safety by the giving of 'special instructions throughout the progress of the work, and that Knox was delegated with this authority; that in attempting to regulate the speed of the work, he gave a negligent order; and that, as a result of this order, the plaintiff was hurt. This being so, the court erred in granting a nonsuit.

The plaintiff also makes the point that the defendant filed a general demurrer to his petition, and that the court overruled it, thereby creating a res adjudicata as to the fact that a cause of action is set out; and that as he proved his case as laid, the court should not have granted a nonsuit. The overruling of a demurrer is a judgment binding on the parties, concluding the points of law necessarily involved. That does not mean that the plaintiff is absolutely entitled to recover if he proves his case as laid; for a general demurrer should be overruled, in an action based on negligence, when the jury, from the facts alleged, would be authorized to infer negligence, though they would not be bound to do so. In the light of the principal ruling already made in the foregoing opinion, it will not be necessary for us to discuss the question as to what particular points of law have been settled by the judgment on the demurrer. Judgment reversed.