Kilgo v. Rome Soil Pipe Manufacturing Co.

Wade, J. 1. If the injury to the plaintiff resulted from negligence at all, it resulted from the negligence of a fellow servant, with whom and by whose side he had worked almost continuously for more than two years prior to the injury; and for an injury arising alone from the negligence of a fellow servant there can be no recovery, except in the case of a railroad company. Civil Code, §§ 3129, 3602; Cedartown Cotton Co. v. Hanson, 118 Ga. 176 (44 S. E. 992); Shepherd v. Southern Pine Co., 118 Ga. 292 (45 S. E. 220); Ellington v. Beaver Dam Lumber Co., 93 Ga. 53 (19 S. E. 21); Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33 (82 S. E. 586); Dwan v. Great Eastern Lumber Co., 15 Ga. App. 108 (82 S. E. 666). 2. A servant can not recover for injuries resulting from a fellow servant’s ineompeteney, if he had equal opportunity with the master of discovering it, or in the exercise of ordinary care should have known .of it. Civil Code, § 3131; R. & D. Railroad Co. v. Worley, 92 Ga. 84 (18 S. E. 361); Crown Cotton Mills v. McNally, 123 Ga. 35-38 (51 S. E. 13). 3. The presumption exists that the master exercised ordinary care in the selection of his servants; and one who complains of injuries which he alleges resulted from the ineompeteney of a fellow servant must overcome this presumption by direct proof, and can not successfully rebut the presumption by inference drawn from facts which fail to disclose that the master knew, or ought to have known, of the ineompeteney of the fellow servant. Georgia Railroad Co. v. Nelms, 83 Ga. 70-74 (9 S. E. 1049); Baxley v. Satilla Mfg. Co., 114 Ga. 720 (40 S. E. 730); Gunn v. Willingham, 111 Ga. 427-434 (36 S. E. 804). 4. No recovery can be had upon mere proof of negligence on the part of the master; but the plaintiff must show, in addition to the exercise of due care on his own part, that he was not aware of the danger, that his opportunities for knowing the existence of the danger were not equal to those of the master, and that in the exercise of ordinary care he could not himself have known of the danger. Civil Code, § 3131; W. & A. R. Co. v. Bishop, 50 Ga. 465; Brush Electric Light & Power Co. v. Wells, 103 Ga. 512-515 (30 S. E. 533); McDaniel v. Acme Brewing Co., 113 Ga. 80 (38 S. E. 404); McDonnell v. Central Railway Co., 118 Ga. 86-89 (44 S. E. 840). 5. An adult servant will be presumed to have knowledge of existing defects or dangers in machinery, in connection with which his duties require him to work, and of the competency or ineompeteney of his fellow servants working with him about such machinery, after he has worked with such machinery and with such fellow servants for a reasonable time. Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (68 S. E. 483); Rowland v. Tift, 131 Ga. 683 (63 S. E. 133, 20 L. R. A. (N. S.) 354); Crown Cotton Mills v. McNally, supra; Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (58 S. E. 413); Beck v. Tumlin Co., 13 Ga. App. 618 (79 S. E. 587). 6. The court did not err in awarding a nonsuit. [738] Decided September 3, 1915. Action for damages; from city court of Floyd county — Judge Eeece. June. 5, 1914. Eubanlcs & Mebane, John W. Bale, for plaintiff. Lipscomb & Willingham, Nathan Harris, for defendant. Judgment affirmed on the mam hill of exceptions. Cross-hill dismissed. Russell, C. J., dissents.