55 Ga. App. 1 | Ga. Ct. App. | 1936
C. L. King filed suit against the Atlanta, Birmingham and Coast Bailroad Company for damages for injury to his person. In his petition he alleged, that he was a section foreman in charge of four men engaged in the maintenance of the tracks and road-bed of the defendant; that he was a fellow servant of the other members of his gang, and at the time of the injury complained of he was performing actual manual labor; that while so engaged he was using a tool known as an adz, the same being a heavy steel tool, having a wooden handle fastened at the center, with a curved surface ending in a blade or sharp edge which was used to cut, chip, shave, and shape wood and crossties; that said adz was furnished to him by the defendant for the purpose of shaping crossties; and “that while thus engaged and without fault” on his part, and as a result of an ordinary blow by the said adz upon said crosstie, part of said adz broke and burst off of the end thereof, and one of said pieces struck the plaintiff in his left eye, which injury caused blindness in that eye, and such injury will cause the loss of the sight of his other eye; that a week or two weeks before this injury he advised his immediate superior, Moody, who was roadmaster and “alter ego for defendant company,” that said adz was old and worn and was chipped on the end and defective and requested that a new and better adz be furnished; that Moody informed and advised plaintiff that he would
New subjects of the law have a more obscure and complicated terminology than that appertaining to the doctrine of assumption of risk. The Code declares: '“The master is bound to exercise ordinary care in the selection of servants, and not to retain them after knowledge of incompetency; he shall use like care in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery, ór dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto.” § 66-301. “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by section 66-301, in order that the servant may recover it must appear that the master knew or ought to have known of the incompetency of the other servant, or of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.” § 66-303. It was said, in Emanuel v. Ga. & Fla. Ry. Co., 142 Ga. 543 (83 S. E. 230) : “In dealing with the doctrine of the assumption of risks by an employee, the difference between ordinary and extraordinary risks must not be overlooked. Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master’s negligence. The
In 18 R. C. L. 694, § 179, it is said: “Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which he has sustained an injury, it by no means follows that he must have appreciated the danger to which he was exposed thereby. His general knowledge may not have been such as to give him any conception of the peril. The condition may have appeared perfectly harmless. If this is shown to have been the case, his right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars his action. . . When, however, a peril is obvious or so patent as to be readily understood by the employee by
In Shue v. Central of Ga. Ry. Co., 6 Ga. App. 714 (65 S. E. 697), it was ruled: '“Where a servant knows before he enters service, or discovers afterwards, that an instrument is unsafe; and makes complaint to the master of this fact, and is directed by the master to use the unsafe instrument, and does so, retying upon the promise of the master to furnish him with a safe instrument, the assumption by the master of the increased risk to the servant in the use of the unsafe instrument will continue until the master fulfils his promise, or notifies the servant of his unwillingness or inability to do so, or until such length of time has elapsed as would, under all the facts and circumstances of the particular case, make it unreasonable for the servant to rely upon the promise.” Judge Lumpkin, in Freeman v. Savannah Electric Co., supra, discussing this principle, said: “ Ordinarily, although a defect in a machine may be known to the servant, if the master promises to remedy it, or to supply a different machine, and directs the servant to proceed with its use, this takes the case out of the operation of the general rule, which declares as a matter of law, on the doctrine of assumption of risks, that a servant who knowingly uses a defective and dangerous machine and is injured thereby can not recover damages from the master. The servant may often rely on such assurance, and continue to use the machine, at least for a reasonable time and with due care, while awaiting the remedying of the defect; and such continued use will not of itself necessarily prevent a recovery. So far as the particular peril is concerned, the implication of law of engagement by the servant to assume the risk is rebutted by the giving and accepting of the assurance. . . The danger, however, of even temporarily continuing to use the machine may be so obvious that no man of ordinary prudence would proceed on the expectation or promise of a future remedy; and the defense of negligence on the part of the servant in continuing in obvious and imminent danger, or in the manner of using the defective machine, may arise. If the master is negligent, the servant would still be prevented from recovering, if by the use of ordinary care he could have avoided the consequences
Judgment affirmed.