Dwan v. Great Eastern Lumber Co.

Wade, J. (After stating the foregoing facts.) The sole negligence charged against the defendant is the negligence of the engineer and of the fireman in accelerating the movement of the train by a sudden, unusual, and unnecessary jerk, and in failing to stop the train after the plaintiff had been thrown to the ground from his seat on the coupling pole, and was running along the track endeavoring to again mount the coupling, when the engineer and fireman “knew he was riding upon the coupling pole and that he fell from the coupling.” If the engineer and the fireman were‘fellow servants of the plaintiff at the time and place of the injury, no recovery could be had under the allegations made in the petition. Under the doctrine laid down in Brush Electric Light & Power Co. v. Wells, 110 Ga. 192 (35 S. E. 365), Railey v. Garbutt Co., 112 Ga. 288 (37 S. E. 360), Roland v. Tift, 131 Ga. 683 (63 S. E. 133, 20 L. R. A. (N. S.) 354), and Ga. Coal & Iron Co. v. Bradford, 131 Ga. 289 (62 S. E. 193, 127 Am. St. R. 228), it is clear that the plaintiff while actually employed in the work of constructing a dry kiln to be used in. connection with the sawmill of the plaintiff,, and in furtherance of the general business of manufacturing lumber, was a fellow servant of the engineer and the fireman, engaged in running the tram-engine and cars used in furtherance of the same business; and if while so employed he was injured by the negligence of the engineer and the fireman, he could not recover from the common master for the injury. The conflicting doctrine laid down in Cooper v. Mullins, 30 Ga. 146 (76 Am. D. 638), was held, in Brush Electric Light & Power [112] Co. v. Wells, and again in Georgia Coal & Iron Co. v. Bradford, supra, to be mere obiter; and the case of Bain v. Athens Foundry and Machine Works, 75 Ga. 718, was distinguished in Brush Electric Light & Power Co. v. Wells, supra, and was again declared not to be controlling, in Colley v. Southern Cotton Oil Co., 120 Ga. 258 (47 S. E. 932). But it is contended that the plaintiff^ having “knocked off” work and ceased his employment before the injury occurred, was not, at the precise time of the injury, himself in the employment of the defendant, and hence was not at that time and place a fellow servant of the engineer and the fireman, through whose alleged carelessness the injury was inflicted. In Railey v. Garbutt, supra, it appeared that the defendants owned a sawmill and operated a railroad in connection therewith, for the purpose of hauling logs from the woods to their mill, and for the further purpose of transporting their employees back and forth between their mill and the woods; and the plaintiff was employed as a stock cutter and was being transported to his place of work on the train of the defendants when he was injured on account of the negligence of the engineer. The court held that he and the engineer were fellow servants, citing Brush Electric Light & Power Co. v. Wells, supra, and McIver v. Florida &c. R. Co., 110 Ga. 228 (36 S. E. 775, 65 L. R. A. 437), as authority for the holding. In Roland v. Tift, supra, the defendant operated a private railroad in connection with his sawmill, for the purpose of transporting his employees from the mill to their work in the woods, and for hauling logs from the woods to the mill; and the court held that the servants engaged in operating the log train and the servants riding thereon from the mill to their work were fellow servants, and the owner of the mill was not liable to one of the servants injured in the operation of the train by the negligence of his. co-servants. It will be noted in both the Bailey case" and the Boland case, supra, that the plaintiffs were being transported to their work, and were not away from it after their active service had ceased. “A servant who, at the time of the accident in suit, was being transported on a railway car or other vehicle furnished for the purpose of facilitating the performance of his work, is deemed to have been injured in the course of his employment, and therefore can not recover if the injury was the result of a risk known to and appre [113] eiated by him.” 4 Labatt’s Master and Servant (2d ed.), 4669. It has, been held in a large number of cases that “negligence of the servants operating the vehicle in which the injured servant was being transported was one of the risks assumed by him. Under such circumstances, he can not recover on the theory that he was in the position of a stranger, as having ceased, for the time being, to be actively employed in his master’s business.” Id. “The inability of such employees to recover has been affirmed, both where the accident occurred while they were journeying between two points at which work was to be done, and where it occurred while they were being transported from the place where they resided to the place where they worked. But the operation of the general rule is not confined to cases of the above type. The character of the train on which the servant was being transported is immaterial, provided it was being used as a means of conveyance to take him, in the course of the performance of his contract, to or from the place where his duties- called him.” Id. 4670. It is insisted by counsel for the plaintiff that the defense of common employment is not available to the defendant, because the plaintiff was traveling entirely for his own purposes, “and the right of the master to exact the performance of services was not merely dormant, but wholly suspended,” and a number of cases, cited in 4 Labatt, supra, 4679, are relied upon to sustain the contention that the relation of master and servant between the plaintiff and the defendant was wholly suspended at the time of the injury. The tram-road used by the defendant’s employees, and with its acquiescence and permission, was undoubtedly used for the purpose of facilitating the performance of the work which the plaintiff was under contract to execute, since it appeared in his petition that he resided in Savannah, and that he “knocked off” work on Saturday at noon in order to return to his home in Savannah; which assertion carried with it more than an intimation (and pleadings must be construed most strongly against the pleader) that his contractual relations with the defendant had not been terminated at the time he “knocked off” at midday, or even at the time the injury occurred an hour later, but that he had only left his work temporarily, with the full intention of thereafter returning to the sawmill where he was constructing the dry kiln, and resuming such work. The right of the master.to exact the performance of services was not wholly [114] suspended, but merely dormant, and he was still in the employ of the defendant company at the time the injury occurred, notwithstanding the fact that he was not at the moment actually engaged as a carpenter. Nor can it be said that he was traveling for his own purposes, since his labors for the week had closed, and he was traveling to his home on the means of transportation furnished by the'defendant for the purpose of enjoying a rest on the Sabbath, and expecting to return and engage in his work for the defendant with renewed vigor thereafter. His transportation to and from his work facilitated the business of the master, and was for the benefit and purposes of the master as well as for his own. In Ellington v. Beaver Dam Lumber Co., 93 Ga. 53 (19 S. E. 21), the court held that one who is daily transported to and from his work on a railroad used by a lumber company for the transportation of its supplies and products is a fellow servant of another person employed by the same company to keep the tram in repair. In the present case it does not appear that the plaintiff was transported daily to and from his business, but it does appear from his petition that it was the custom of the defendant to permit its employees to ride upon its tram-road between its sawmill and the railroad siding, and he was seeking to avail himself of this custom, as an employee of the defendant, when he sought to board the moving train and suffered the injury complained of. We think the assertion in the petition that the plaintiff and other employees engaged in the construction of the dry kiln had “knocked off” work at 12 o’clock on the day of the injury would not justify the conclusion that his connection with the defendant as an employee had absolutely terminated, but indicated rather that his services as employee were temporarily suspended, and that it was as an employee of the defendant that he sought transportation away from its mill, and it was as such employee that he received the injury alleged through the negligence of his coemployees. Since, in our view of the case, the plaintiff, as a fellow servant, could not recover, and upon this ground the judgment sustaining the demurrer was proper, it is unnecessary to discuss other grounds of the demurrer. Judgment affirmed. Roan, J., absent.