Chandler v. Southern Railway Co. , 113 Ga. 130 ( 1901 )

Lumpkin, P. J.

Tire error assigned in the present bill of exceptions is the granting of a nonsuit. The petition alleged that the plaintiff was an employee of the railway company in the capacity of a section hand, and that, while engaged with three other such bands, who were his fellow-servants, in placing a hand-car upon a track of the company, one of them, named Pool, negligently “ jerked up ” a corner of.the car and thus caused the “plaintiff’s corner” to fall suddenly to the ground, in consequence whereof he sustained serious physical injuries. At the trial the plaintiff was introduced as a witness in his own behalf, and testified to facts warranting the conclusion that he was injured in the manner, alleged. On cross-examination he testified: “ M. D. Smith was foreman of that section. He was not with us the day I was hurt. I was in charge of the work. I was acting foreman that day. I took Mr. Smith’s place.” In response to questions asked by his own counsel, the plaintiff further testified in this connection: “ The section boss went off Saturday night and came back Monday morning. The accident happened Monday morning. He came up on ten o’clock train Monday morning. After he ate his dinner, he came on and took charge of the work. When he left, he just said go ahead with the work where you are at until I come back. Said to go to work where we were. I don’t know that he told me any more particularly than the others. I was the only white man there. The other hands were darkies. He gave me no authority to discharge hands or to hire them. Pool had been at work there two or three years; I don’t know exactly. I had no more authority than the others. I suppose I was in charge of the work — I don’t know I had any more to do with it than the rest. I don’t know that I had any more authority at all than the rest.”

Counsel for the defendant in error insisted here that the case of the plaintiff fell to the ground, because of a failure on his part to prove either the alleged negligence of Pool, or that he was the plaintiff’s fellow-servant. As to the first point, it is enough to say that a reading of the evidence will show clearly it is not well taken. Indeed, it was not stressed by the attorneys for the railway company. Their main contention was, that uffder the testimony of the plaintiff himself, he was, at the time he was hurt, not a fellow-servant of Pool, but really his “boss,” having taken the place and assumed the duties of Smith, the section foreman. In other words, their position was that Chandler was, on the occasion referred to, a vice-principal, and, as such, represented the company in assuming control of the work in which he and his colaborers were engaged. In view of the evidence adduced at the trial, we are not prepared to say whether Smith himself was, or was not, a vice-principal, for it was not shown exactly what relation he sustained towards the plaintiff and his fellow-workmen. Granting, however, for the sake of the argument, that Smith was, as claimed, a vice-principal, we think the testimony, considered as a whole, would have justified the jury in concluding that he was not, during his absence, superseded by the plaintiff in that capacity, but that the. latter really retained his customary relation as a fellow-servant of Pool and the other track hands. Certainly the jury would not have been -constrained to find that Chandler had authority from the company to act as section foreman during the temporary absence of Smith. Indeed, it does not appear that, even if Smith contemplated that Chandler should assume his duties and responsibilities, he had authority from the' company to constitute Chandler its vice-principal. Looking to the facts to which the plaintiff testified, rather than to the mere statements of his conclusions therefrom, it is to be gravely doubted whether Smith really intended to place Chandler in authority over the hands with whom he was ordinarily engaged at work in the capacity of a fellow-servant. While it is true that Chandler did state, as matter of conclusion, that he was “in charge of the work,” that he was “acting foreman that day,” and that he “took Mr. Smith’s place,” his statements as to what actually occurred tend strongly to negative the idea that Smith so intended. When he left the hands, he addressed them all, and in substance told them to continue at work where they were. He did not, so far as appears, undertake to place any one of them in authority over the others; nor was it shown that, on any previous occasion, he had designated Chandler to act as his substitute in managing the hands and directing the work while he was temporarily called away. The testimony as a whole bears the inference that when Smith left on the particular occasion now under consideration, Chandler usurped the right to direct his colaborers in the prosecution of the work in which they were engaged, and that they tacitly assented to his exercising such control over them. Clearly, Chandler can not be said to have been clothed with complete authority in the premises, for it distinctly appears that he continued, as was expected of him, to perform his usual duties as a mere laborer. While it is now an established rule that -the testimony of a plaintiff in his own behalf should be taken most strongly against him [Southern Bank v. Goette, 108 Ga. 796, following Railroad Company v. Evans, 96 Ga. 481), it will not do to say that he is to be conclusively bound by his statements of mere conclusions, when, in view of the facts testified to by him, it affirmatively appears that such conclusions are notin accord with the precise truth in regard to the matter under investigation. We are accordingly of the opinion that the case ought to have been submitted to the jury under proper instructions from the trial court. Judgment reversed.

All the Justices concurring.