Gartrell v. Russell

Broyles, C. J. 1. Where a suit in damages for the homicide of a servant is brought against the master, the plaintiff has the burden of establishing negligence on the part of the master, and due care on the part of the deceased, and where the master is not a railroad company, all presumptions are in the master’s favor. Wing v. Savannah Guano Co., 17 Ga. App. 534 (87 S. E. 827), and cit. 2. “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.” Civil Code (1910), § 3129; Buchsbaum v. Sadler, 40 Ga. App. 709 (151 S. E. 566). Especially is this true where it appears that the injured servant knew, or possessed equal means with the master of knowing, of the negligence or misconduct of his fellow servant which caused the injuries sued for, and that he (the injured servant), by the exercise of ordinary care, could have known of such negligence or misconduct. Civil Code (1910), § 3131; Liggett & Myers Tobacco Co. v. Davis, 28 Ga. App. 407 (111 S. E. 584). 3. In the instant case, the amended petition, properly construed (most strongly against the plaintiff), shows that the homicide of the servant (the plaintiff’s son) was caused by the negligence of a fellow servant, and that the plaintiff’s son knew, or possessed equal means with the master (the Russell Transfer Company), of knowing of that negligence, and that he, by the exercise of ordinary care, could have known of the negligence. It follows that the petition fails to set out a cause of action either against the Russell Transfer Company or against the other defendant, the Sun Indemnity Company of New York' (the insurer), and that the court properly dismissed the case on general demurrer. Judgment on main bill of exceptions affirmed,- oross-bill dismissed. MacIntyre and Guerry, JJ., concur.