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Page:Harvard Law Review Volume 2.djvu/234

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terms that any employee who is free from fault can recover for the negligence of any other employee without respect to whether the two were engaged about the same business or not. This is the invariable rule that holds between railroad companies and their employees, under our code." In the latest case, Georgia Railroad V, Ivey, 73 Ga. 499, the statute was held to apply to an employee of the company killed by the carelessness of other employees, all engaged in the erection of a bridge.

In no case, however, can the employee recover unless without fault in himself. In Campbell v. Atlanta and Richmond Air Line Railroad Company, 53 Ga. 488, it was held that the burden was on the plaintiflF to show that the injury was caused without fault or negligence on his part. A year later, in Thompson's case, to which reference has already been made, it was held that it was for the company to show the injured employee either at fault or negli- gent. The court adds, in a note ^ to its opinion, that, in deciding the case before it, consideration of the case in 53 Ga. 488, was inadvertently omitted. It was shown, however, in Central Railroad and Banking Company v, Kelly, 58 Ga. 107, 113, that these two cases might be reconciled by applying this test, — that if the plaintifif is wholly disconnected with duties about the particular business in which he was hurt, the presumption of law that he is without fault arises ; but if he was engaged in the duty in the dis- charge of which he was hurt, the burden is on him to show that he was without fault. In Savannah, Florida, and Western Railway V, Barber, 71 Ga. 644, it is pointed out that a charge to the efifect that the burden is on the plaintifif to show not only himself blame- less, but the defendant negligent, is erroneous. " The moment the plaintifif proves to the jury either, the legal presumption proves the other until rebutted, and the defendant must rebut that pre- sumption."

The next State to alter the law was Iowa. Down to 1862 the common-law rule prevailed.^ In that year the Legislature passed an act, chap. 169, of which the seventh section provided that " every railroad company shall be liable for all damages sustained by any person, including employees of the company, in consequence * of any neglect of the agents or by any mismanagement of the engineer or other employees of the corporation, to any person sus-

» p. 513. « SulKTan v. The M. & M. R. R. Co., 11 la. 421.