Southern Cotton Oil Co. v. Shields , 20 Ga. App. 549 ( 1917 )

Wade, O. J.

1. There was no error in overruling the general and special demurrers to the plaintiff’s petition.

2. Though the plaintiff’s petition predicated the right of the servant to ' recover upon certain alleged defects in machinery, and upon the alleged failure of the master to furnish a safe place to work, not only did the defendant’s plea interpose as a distinct and complete defense the contention that the injury occurred solely through the negligence of a fellow servant, but there was some evidence adduced which must reasonably be interpreted as tending to support such an inference. The court therefore erred in failing to submit the “fellow-servant doctrine” to the jury for their consideration, in a clear and definite instruction, notwithstanding there was no timely written request for any charge on this subject. Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33 (82 S. E. 586); Dwan v. Great Eastern Lumber Co., 15 Ga. App. 108 (82 S. E. 666) ; Studevant v. Blue Springs Lumber Co., 16 Ga. App. 668 (3) (85 S. E. 977), and cases there cited; Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (5) (86 S. E. 82).

3. Other grounds of the motion for a new trial are not passed upon, as they are either without substantial merit or relate to matters which may not recur on another trial, when the evidence adduced, and consequently the charge of the court, may be materially different.

Decided July 23, 1917.

Action for damages; from Warren superior court—Judge Walker. August 1, 1916.

M. L. Felts, for plaintiff in error. L. D. McGregor, contra.

Judgment reversed.

George and Luhe, JJ., concur.