Muscogee Manufacturing Co. v. Cady , 22 Ga. App. 180 ( 1918 )

Harwell, J.

(After stating the foregoing facts.) 1. The'defendant demurred specially to paragraphs 2, 3, and 4 of the petition, upon the ground that it was not alleged why it was necessary for the plaintiff to go from mill No. 5 to mill No. 2, and it was not alleged what his duties were in mill No. 2. The demurrer as to these paragraphs is well taken. It is alleged that it was his duty, as a weigher and examiner of cards on the end of frames, to keep a record thereof showing the weights, numbers, etc., and that the frames were located on the fifth floor of mill No. 5. That was his place of work. It does not appear why it was necessary for hirn^to go daily from mill No. 2 to the fifth floor of mill No. 5. He says that his duties required him to do that, but that allegation is a conclusion, and the special demurrer calls for and makes it necessary for him to explain why it was necessary for him to go to mill No. 2. He should allege what his duties were in mill No. 2 which made it necessary for him to go to that mill in the performance of his work. It must appear that he was in the line of his duty when he was injured. Neff v. Broom, 70 Ga. 256 (2); Atlanta & Charlotte Air-Line Ry. v. Ray, 70 Ga. 674 (4); Eagle & Phenix Mills v. Johnson, 131 Ga. 45 (61 S. E. 990).

2. The defendant demurred to the following allegation in paragraph 6: “While he was standing in said elevator ¡the truck with the box fell from the fifth floor down said elevator shaft, striking him,” etc.; basing the demurrer to this paragraph on the ground that it is too vague, indefinite, and uncertain, it not being alleged-who or what caused the truck to fall down the shaft; that it is not alleged whether a vice-principal or a fellow servant, or some accidental force caused the truck to fall, and it does not appear whether the truck was thrown down the shaft or what caused it to enter the shaft. It appears from the petition that when the gate was closed it was impossible for any object to roll from the floor into the shaft. This truck with a box on it containing bobbins, which fell down the shaft, it is alleged fell from the fifth floor and weighed 250 pounds, and was on rollers, and was used in carrying bobbins and other materials from place to place in the mill. Prom the allegations in the petition it was impossible for it to have rolled from the floor into the shaft if the gate had been in working order and closed as the elevator went down after the plaintiff entered. It appears further that it could not have fallen down the shaft if the door which closed had been in working order, instead of being nailed to the post, and had closed as the elevator descended. The defendant claims that the plaintiff should have gone further and alleged who or what projected this into the shaft, and that if a fellow servant rolled or shoved the truck into the shaft through this open gate, the plaintiff could not recover. If that, contention is sound, then the special demurrer is good, and the plaintiff should have gone further and shown that a fellow servant did not cause the truck to roll or fall into the shaft. Wo can not agree with this contention of the defendant. "The negligence of a fellow servant does not relieve the master from liability to a coservant for an injury which, would not have happened had the master not been negligent himself.” Loveless v. Standard Gold Mining Co., 116 Ga. 427. "The negligence of a fellow servant does not excuse the master from liability to a coservant for an injury which would not have happened had the master performed his duty.” Cheeney v. Ocean Steamship Co., 92 Ga. 726 (19 S. E. 33, 44 Am. St. R. 113). "It is the duty of the master to provide for his servant a reasonably safe place in which to work, and to that end he is bound to make reasonable provision for protection of the servant against dangers to which he is exposed while engaged in the work he is employed to perform. For a failure to perform such duty the master is liable to the servant for injuries caused thereby, and this is true though the injuries resulted from the concurrent negligence of the master and a fellow servant of the one injured, where the injury could not have been sustained but for the failure of the master to perform such duty.” Jackson v. Merchants & Miners Transportation Co., 118 Ga. 651 (45 S. E. 254). See also Southern Bauxite Co. v. Fuller, 116 Ga. 695 (43 S. E. 64); King Manufacturing Co. v. Walton, 1 Ga. App. 403 (3), 410 (58 S. E. 115). It is well settled, therefore, that if the injury is caused by the concurrent negligence of the master and a fellow servant, and could not have happened had the master performed his duty, the master is liable. How is it material, then, as to who or what caused this truck to fall into the shaft? If it was impossible for it to have gone into the shaft but for the alleged negligence of the master in failing to keep the elevator in repair, then the negligence of the master was the proximate cause of the injury, and it is not necessary for the plaintiff to go further and allege and prove who or what caused the truck to fall into the shaft. There is no merit, therefore, in this portion of the special demurrer.

3. In our opinion there is no merit in the other special demurrers. The petition set forth a cause of action, and is sufficient to withstand the attack of a general demurrer. On account, however, of the error of the trial judge in not sustaining the portion of the special demurrer as heretofore stated, the judgment overruling the demurrers is

Reversed.

Broyles, P-. J., and Bloodworth, J., concur.

Broyles, P. J.

I agree with the majority opinion of the court, except that I think the special demurrer should have been sustained as to paragraphs 9, 10, and 11 of the petition.