Southern Railway Co. v. Salmon

Evans, P. J. (After stating the foregoing facts.) It will be, observed from the statement of facts that the plaintiff’s cause of action is predicated solely on the negligence of a coemployee. At common law, where the employer has used due diligence in the selection of competent employees, and has furnished them with reasonably safe means and place of work, he' h'as [756] performed the full measure of his legal obligation to them, and is not answerable in tort to one of his employees for an injury sustained by him in consequence of the negligence of another employee, when both are engaged in a common service. A statutory exception to this rule is found in the Civil Code, §2610, which declares that, “Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” The Civil Code (§2323) further provides that “If the person injured is himself an employee of the company, and the damage was caused by another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery.” The right of action of an employee injured by the negligence of a coemployee against the employing railroad company springs from the statute, and in a suit to recover damages for such injury the plaintiff must show affirmatively that he was without fault or negligence about the business which caused the injury. The significance of the phrase “without fault or negligence,” as affecting the employee’s right to recover, has been several times considered by this court. It has been held, that recovery is conditional on the employee’s' being without fault or negligence while the injury was received, whilst the servant was engaged at the time in the work for which he was employed; that the negligence refers to negligence operating at the time of the injury; and that any negligence of the employee which does not contribute to his injury will not defeat the action. A. & W. P. R. Co. v. Webb, 61 Ga. 586; A. & W. P. R. Co. v. Johnson, 66 Ga. 259; S., F. & W. Ry. v. Barber, 71 Ga. 644; Southern Ry. Co. v. Baston, 99 Ga. 798 (27 S. E. 163). It was said in Georgia B. Co. v. Ivey, 73 Ga. 499, “If the injured person be, at the time of his injury, in the service of the company, if without fault he may recover; if at fault he can not recover. Any other person may recover, though at fault, but the recovery will be less on account of such fault.” In Central R. Co. v. Lanier, 83 Ga. 587 (10 S. E. 279), it was said that the words of the statute, “without fault,” mean'“that the.party suing must not have done anything to contribute to his injury, or must have done everything to prevent the consequences of the company’s negligence.” The expression “without fault” has been considered in many decisions; and the [757] purport of- their interpretation is that an employee can not recover of a railroad company for injuries due to his coemployee’s negligence, if the injured employee is negligent, and his negligence appreciably contributes to the injury. Little v. Southern Ry. Co., 120 Ga. 347 (47 S. E. 953, 66 L. R. A. 509, 102 Am. St. R. 104). Without marshaling all these cases, it will be seen from the citations given, that, in a suit by an employee against a railroad company for damages resulting from an injury inflicted by the negligence of a coemployee in the-same business, the statute denies to the plaintiff a right of recovery if he is negligent and his negligence appreciably contributes to his injury. It is not so much whether the plaintiff’s negligence is slight or more than slight, but the imperative demand of the statute is that to recover he must be without fault; and the employee can not be without fault if his negligence contributes in an appreciable degree to his injury. 'The doctrine of contributory negligence laid down in the Civil Code, §3830, does not apply in such cases. E. T., V. & Ga. R. Co. v. Duggan, 51 Ga. 212; L. & N. R. Co. v. Thompson, 113 Ga. 983 (39 S. E. 483). The distinction between the statutory right of action of an employee for injuries sustained in consequence of the negligence of a coemployee, and the common-law right of action of an employee against an employing railroad company to recover for injuries consequential upon the railroad company’s negligence, has not always been clearly drawn. Central Ry. Co. v. McClifford, 120 Ga. 90 (47 S. E. 590), may be cited as an illustration. In that case the injured employee based his right to recover upon the negligence of the railroad company in maintaining a gate across the track in a defective condition, and without proper appliances to prevent the gate from closing across the track; and also upon the negligence of the engineer in failing to obey proper signals and running at a reckless rate of speed. The distinction between the basis of liability accruing from the negligence of the coemployee, and from the negligence of the railroad company, is recognized in the headnotes, though in the opinion this distinction does not seem to be drawn. The older cases, which have'never been overruled, recognize the principle upon which we place1 our decision in this case, and any conflicting dicta found in subsequent decisions must yield to ■ the rule as announced in the older cases. [758] The vice of the instruction marked (c) in the statement of facts is that the jury were instructed that if the plaintiff was injured by the negligence of a coemployee, he could recover if he could not have avoided the consequences to himself of such negligence by the exercise of ordinary care, without taking into account the blamelessness of the plaintiff. This enunciation of the rule, defining the elements of the plaintiff’s ease essential to recovery, eliminates inquiry by the jury as to whether the plaintiff’s presence on the pilot of the engine at the time of the “injury, in violation of a rule of the company, was negligence which appreciably contributed to his injury. Judgment reversed. All the Justices concur.