Moore v. King Manufacturing Co.

Fish, C. J. (After stating the facts.) 1. The court instructed the jury: “When an employee is confronted with two methods of doing a certain thing, the one safe and the other dangerous, he owes the duty to his employer to pursue the safe method, and any departure from the safe method will prevent his recovery in the event he is injured, that is, any intentional or conscious departure, any departure that was inconsistent with ordinary care.”- Error was assigned on this charge, because there was no evidence to authorize it. As set forth in the preceding statement of facts, the defendant contended that the method adopted by the plaintiff in adjusting the saws was very dangerous and that there was a safer way of doing it, and submitted evidence tending to prove such contention ; so there was no merit in this assignment of error. 2. The court further instructed the jury: “If you find from the evidence that John Shellenberger was foreman in defendant’s shop, or boss of the shop, but that he was helping and assisting the plaintiff in his efforts to repair and adjust that gang-saw, I charge you, notwithstanding he was foreman, he is in that transaction a fellow-laborer; and if the plaintiff was injured in that way, the defendant would not be liable to the plaintiff for such negligence.” One of the exceptions to this charge was, that there was no evidence that Shellenberger “was helping or assisting the plaintiff in his efforts to repair and adjust the gang-saw.” The defendant’s witnesses denied that Shellenberger had anything to do with the machine in question, beyond instructing the plaintiff to adjust the saws; while the plaintiff’s evidence was merely to the effect that after giving such instruction Shellenberger negligently started the gang-saw. So it is clear there was no evidence to authorize the jury to find that Shellenberger was assisting the plaintiff in the actual work of adjusting the gang-saw, and the exception is well taken. 3. Another charge excepted to was as follows: “I charge you again, that if you find from the evidence that John Shellenberger was the foreman or boss of defendant’s shop, subject with the plain [580] tiff to the orders of a general manager, and that he did an act which is ordinarily in the scope of a colaborer, and which resulted in the injury of the plaintiff, then he, Shellenberger, would be a fellow-servant, and the plaintiff would not be entitled to recover.” One of the exceptions to this charge was that there was no evidence that Shellenberger did an act which was ordinarily within the scope of a colaborer or fellow-servant. We think the charge was open to this exception. The evidence disclosed that the gang-saw, which the plaintiff was adjusting when injured, was affixed to a table which was three and a half by five feet; that the shifter used for starting- and stopping the machine which operated the gang-saw was at the right-hand front corner of. the table and within easy reach of the person operating the saw; and it is at least clearly inferable that it was the duty of the operator of the saw to start and stop the machine which ran it. Certainly there was no evidence that it was the duty of any other employee than the one operating the saw to start or stop such machine, or any circumstance from which it coiild be inferred that the starting or stopping of the machine was ordinarily within the scope of duty of any employee other than the operator of the saw. 4. The court also instructed the jury as follows: “I charge you. that when one enters the service of another, he assumes the usual and ordinary risks incident to the employment, such as the carelessness and negligence of a fellow-laborer;” and “If you find, within the rule that I have given you, that John Shellenberger at the time was a fellow-servant of the plaintiff, then, irrespective of what he did, or whether he was or was not negligent, the plaintiff could not recover.” The error assigned upon these instructions was, that there was no evidence that Shellenberger was a fellow-servant of the plaintiff. The plaintiff, as we have set out in the statement of facts, testified that Shellenberger was superintendent and general manager of the defendant’s business in every way. Shellenberger, the only other witness on this subject, testified, that King was president and general manager of defendant’s business; that while he, Shellenberger, did not work regularly on any of the machines in the shop, he occasionally, when it was necessary to do something that, did not require any length of time, did work on them; that he had little time to work on machinery, as most of his time was required in directing the work of the employees; that he was foreman, and as [581] such his duties were to employ hands, to lay out and plan work for them and set them at it, and to direct them what to do. He had general charge of the shop and superintended the work therein. Xing directed him and he directed the employees. Under this evidence, we are quite clear that Shellenberger was the representative or vice-principal of the defendant eompanj1', and the mere fact that he occasionally worked on a machine when it was necessary to do something that required but little time did not constitute him a fellow-servant of the plaintiff,’ if he, while not engaged in assisting the plaintiff to operate the saw or the machine which ran it, negligently started the machine without waiting for the plaintiff to start it himself. The present case differs essentially in its facts from the cases of McDonald v. Eagle & Phenix Mfg. Co., 67 Ga. 761, 68 Ga. 839, McGovern v. Columbus Mfg. Co., 80 Ga. 237, Gates v. Itner, 104 Ga. 679, Ilamby v. Union Paper Mills Co., 110 Ga. 1, Gunn v. Willingham, 111 Ga. 427, and Sheppard v. Southern Pine Co., 118 Ga. 292; in all of which it appeared that the boss or foreman, whose negligence caused the injury complained of, although having direction of the job, was actually laboring with and aiding the colaborer injured by the boss’s negligence, and it was consequently held that he was, while thus engaged, a mere fellow-servant of the one injured. The rule that a servant is á vice-principal of his master only when executing the absolute, or non-assignable, duties of the master has not been established in this State. See Atlanta Cotton Factory v. Speer, 69 Ga. 137, Taylor v. Georgia Marble Co., 99 Ga. 512, and Blackman v. Thomson-Houston Co., 102 Ga. 64. Judgment reversed. All the Justices concur, except Beck, J,, not presiding.