McKale v. Hines

Hill, J. (After stating the foregoing facts.) 1. It is well established, on principle and authority, that cí a master is answerable for defects in any instrumentalities which he has temporarily taken over from the owner and made a part of his own plant. . . So far as regards his obligations to his servants he must be considered as the owner pro tempore. ” 3 Labatt’s Master & Servant, § 1074; 1 Sherman & Redfield on Negligence (6th ed.), § 197; Georgia Railroad v. Hunter, 12 Ga. App. 301 (77 S. E. 176); Southern Bell Tel. &c. Co. v. Covington, 139 Ga. 566 (2 a) (77 S. E. 382); Central Ry. Co. v. McClifford, 120 Ga. 90 (47 S. E. 590). In the instant case the evidence for the plaintiff clearly disproved the allegations of the petition relied upon to show that the master had taken over and used as a part of his plant the instrumentality whose .defective condition was the cause of the servant’s injury. 2. The railway company owned and operated electric trucks for the transportation of freight from railroad cars to steamships and vice versa. These trucks were recharged every night at the charging station of the railway company by its servant. Another corporation owned and operated electric trucks of identically the same kind as those of the railway company. By an agreement with the railway company the- trucks of the other company were recharged at night at the railway company’s charging station by the employee of the railway company. The trucks of the other corporation were used every day by the employees of that company, and at the end of the day were placed by them in a shed near the charging station, and afterwards operated by the employees of the railway company from that shed to the charging station to be recharged. When recharged, these trucks were taken possession of and used by the employees in the business of the company owning them. No use whatever was made of the trucks of this company by the railway company, and its possession of them was alone for the purpose of recharging them for the use of the owner company. One of these trucks which had been left for recharging had a defective brake, and while [521] the plaintiff was taking it into the charging station for the purpose of being recharged, he was injured because of this defect. The railway company was not the temporary owner of the defective truck, and had no qualified right of property therein, and could not be held to have had constructive knowledge of its defective condition, and, in the absence of actual knowledge of its defective condition, was not liable for the injury. Green v. Babcock Lumber Co., 130 Ga. 469 (1) (60 S. E. 1062). 3. After a careful examination of the allegations of the petition and the plaintiff’s evidence applicable thereto, this court is clearly of the opinion that a fatal variance exists between the allegations of negligence on which the defendant’s liability is predicated and the proof, and therefore that the judgment of nonsuit was not error. Judgment affirmed. Jenleins, P. J., and Stephens, J., concur.