Taylor v. Georgia Marble Co.

Atkinson, Justice. 1. The liability of the defendant in the present case is referable to the general law bearing upon the relation of master and servant; for, while the defendant was engaged in running and operating a railway train, it was a mere private institution, not operated under and by virtue of any franchise granted by the State, and therefore does not fall within the provisions of our code imposing liability upon railroad companies in favor of an employee injured, when without fault himself, in consequence of the negligence of a fellow-servant. The sole question for determination is whether the person whose alleged negligence caused the injury was, in a legal sense, a fellow-servant with the person injured, and engaged as such in and about the common employment of the master. Corporations act only by and through their agents; and while in the loose general sense all agents and servants of a corporation, without reference to rank or dignity, are co-employees, they 'are not fellow-servants in the sense Which relieves the corporation from liability for the negligent act of one resulting in injury to another, where the person whose negligence caused tire injury occupies the position of quasi master as to the person injured. Atlanta Cotton Factory v. Speer, 69 Ga. 137. Such a-doctrine would result in defeating, in every instance, a right of recovery in favor of an employee of a corporation, injured in consequence of the negligence of another employee. Where the master delegates to one of his employees such authority as subjects the will and discretion of all other employees, engaged in and about the particular business, to the direction and control of the person to whom that authority is delegated, such person may be well said to be a vice-principal, and to stand in the relation of the master himself. 518 The negligence of such person may properly be imputed to the master as his act, and particularly is this true with respect to the -employees' of corporations; for if the master be not present in the person to whom it has delegated this ■authority, it is not and can never be present at all. It appears in the present oas-e, -according 'to the ¡allegations in the declaration, that- the engineer through whose negligence the injuries were alleged to have been sustained had, by direction of the common master, the corporation, sole charge and entire control and management of the train, and of the plaintiff in his -capacity as brakeman and coupler thereon. It wa-s alleged that the plaintiff was a subordinate employee under the direction and control of the engineer, and that it was his duty to obey the orders of the engineer. The declaration -alleges that he was employed by the -engineer. These allegations being admitted by the demurrer to be true, the -engineer, -while, -a ooemployee, was not -in a legal sense a fellow-servant with the pl-aintiff. The master had deputed to the engineer authority over those who- were subordinate to him, and the negligence of the person exercising such authority was the -negligence of the master itself. (See Chicago, Milwaukee & St. Paul Railway Company v. Ross, 112 U. S. 377.) 2. The declaration, in all other respects, was sufficient, and the relation existing between the person injured, -and the one through whose negligence the injuries were alleged to have resulted, not having been of such a character as to defeat a recovery upon the ground that they were fellow-servants, the demurrer to the declaration should hav-e been overruled. Judgment reversed.