Spencer v. Brooks

Simmons, Chief Justice. Brooks, a minor, was employed by the receivers of the Bichmond and Danville Bailroad Company as brakeman on a freight-train, and while so employed sustained serious personal injuries by reason of his being run into by the train when engaged in opening the “knuckle” of the bumper of a car, under the direction of the conductor of the train, preparatory to coupling that car to others belonging to the train. By his next friend he sued the receivers for damages, alleging negligence on the part of the defendants and the conductor; and recovered a verdict for $1,500. The defendants made a motion for a new trial, the grounds of which [689] .are set out in the reporter’s statement, and to the overruling of the motion they excepted. 1. It is complained that the court erred in excluding, when offered in evidence by the- defendants, a contract in writing between the plaintiff and the Richmond and Dan-ville Railroad Company, whereby the plaintiff agreed to be bound by a rule of the company prohibiting brakemen from going between cars for the purpose of coupling or uncoupling, etc., and agreed to waive liability of the company to him for any results of infraction of the rule. There was no error in excluding this contract. It was not a contract with the receivers, but one entered into with the company prior to the receivership. When the company ceased to operate the road and the receivers took charge of it, the latter were not bound to retain the employees of the former, and the contracts of the company with its employees were not binding on the receivers unless adopted by them; nor, in the absence of such an obligation on the part of the receivers, were such employees bound to abide by the terns of any contract entered into with the company. The contract in question, therefore, was not necessarily binding between the plaintiff and the receivers, and there was no evidence showing any adoption of it as between them, either directly or by implication. 2, 3. It was complained that the trial judge, in his charge to the jury, erred in assuming that the conductor was the alter ego of the defendants on the occasion in .question, thereby excluding the theory of the defendants that they were fellow-servants, and that the company was therefore not liable for any injury resulting from the negligence of the conductor. Ordinarily the conductor of a train has control of its movements, and brakemen connected with the train are, while engaged in coupling cars to the train at stations, subject to his orders and under his control; and he is not, when directing the movements of the train and giv [690] ing orders to the brakeman and the engineer in connection, therewith, a fellow-servant of snch employees, within the-meaning of the rule as to fellow-servants, but is a vice-principal of the master. See Mills v. East Tenn. Ry. Co., 87 Ga. 105; Prather v. Richmond & Danville R. Co., 80 Ga. 436, and cases cited. The evidence in this case discloses-nothing which would take it out of the general rule above-stated. It shows that the conductor was in fact directing- and controlling the movements of the train, and that th& plaintiff and the engineer were acting under his orders at the time of the injury. The instructions complained of' were therefore not improperly based upon the assumption, that the plaintiff and the conductor were not fellow-servants. 4. The charge was not in other respects erroneous; the-evidence warranted the verdict, and there was no error in denying a new trial. Jlodgment affirmed.