Butler v. Central Georgia Brick Co.

Atkinson, J. 1. In a suit for damages against the Central Georgia Brick Company, a corporation, for the homicide of her husband, the petition of Mattie B. Butler, as amended, alleged, among other things, that Aaron Butler was an employee of defendant, engaged with other ' employees'in loading certain railroad flat ears with'brick, and shoving the loaded cars out of the way along the track to give place on the railway track for other empty cars to be loaded. Bradley Ward, an officer of the corporation, was foreman of all these employees, not being engaged in the work himself, but it being his duty to direct and supervise it, he having also authority to employ and discharge employees working under him. One car had been loaded, and the plaintiff’s husband, with other employees, under express direction of Bradley Ward, who was then supervising the work, undertook to push the loaded car away. While so engaged, in full view and speaking distance of Bradley Ward, and before the loaded car was out of the way, Ward negligently directed other employees to move an empty car from the rear to the place for loading, knowing that the plaintiff’s husband was in a position so that he would not see and did not know the second car was moving on to him, and negligently failed to notify him of the approach of the empty car, which, being pushed by the other employees of defendant, under direction of Ward, crushed and killed the plaintiff’s husband. Held: (a) That though it was alleged that the plaintiff’s husband and Bradley Ward were engaged in serving the same corporation relative to loading cars, the allegations were not of such character as to charge that they were fellow servants. [634] August 15, 1911. Action for damages. Before Judge Felton. Bibb superior court. February M, 1910. J. W. Preston Sr. and L. D. Moore, for plaintiffs. Ilardeman, Jones, Callaway <£• Johnston, for defendant. (6) Nor were the allegations of such character as to show that the danger was as obvious to the plaintiff’s husband as it was to the master. (c) Accordingly, it was erroneous to dismiss the petition on demurrer, which complained-that: (1) “The sole negligence alleged is the failure to give warning to said Aaron Butler, and Bradley Ward is shown to have been simply fellow servant with said Aaron Butler, because at the time of the alleged injury with respect to the corporation he was simply engaged with Aaron Butler in the same work, and his part in the particular work in which Aaron Butler was injured was not different in his relation to the master from that of the others engaged in that work.” (2) “And because under the allegations in the petition as amended it is not shown that the damage was not. as obvious to said Butler as to the others.” 2. Other grounds of demurrer were urged, but the court overruled them, and the defendant did not except to the judgment. Judgment reversed. Beck, J., absent. The other Justices concur.