Bowden v. Virginia-Carolina Chemical Co.

111 S.E. 210, 28 Ga. App. 402, 1922 Ga. App. LEXIS 546

• Court: Court of Appeals of Georgia
• Decided: March 20, 1922
• Docket: 12779
• Status: Published

Opinion

Hill, J.

1. The negligent act alleged and proved which injured the plaintiff was that of a fellow servant engaged in the same business, for which the common master is not responsible, except in cases of railroad companies. Civil Code (1910), § 3129.

2. The plaintiff and other employees, who were .throwing lead out of the upper windows, and the foreman, wno instructed them to do so, were all in the same service. Under the rulings of the Supreme Court in Moore v. Dublin Cotton Mills, 127 Ga. 609 (56 S. E. 839, 10 L. R. A. (N. S.) 772), and Brush Electric Light Co. v. Wells, 110 Ga. 192 (35 S. E. 365), the foreman was only a fellow servant. Besides, the order of the foreman to the employees was not the proximate cause of plaintiff’s injury, but the negligent manner in 11411011 the order was executed by these employees.

3. The court did not err granting a nonsuit.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur. John R. Cooper, W. O. Cooper Jr., E. W. Butler, for plaintiff. Jones, Park & Johnston, for defendant.