114 Ga. 720 | Ga. | 1902
Baxley sued the Satilla Manufacturing Company for damages. At the trial the judge granted a nonsuit, and this ruling is assigned as error. It appears from the evidence that the plaintiff was employed by the defendant at a sawmill, and that it was his duty to set and adjust the guide of the saw, which guide was held in position by a bolt which passed through it and was fastened by an iron nut screwed thereon; that it was necessary that the guide should be adjusted while the saw was in motion, and that in adjusting the guide on the occasion upon which the plaintiff was injured the pressure upon the nut caused the bolt to break and he was thrown against the saw and received injuries which were painful and permanent; that the pressure upon the bolt at this time was not exceeding five pounds, and if the bolt had been ■of the proper kind it should have resisted a pressure of sixty pounds or more. The plaintiff claimed to have established by his evidence that the defendant was negligent in two particulars: first, in employing an incompetent machinist, or, if the incompe'tency was not known at the time of his employment, in retaining in its employment an incompetent machinist after knowledge of his incompetency, one of the duties of this machinist being to put
In reference to the character of the bolt used, the evidence, taken as a whole, required a finding that while a steel bolt would have been the best appliance to use, a sound iron bolt was not an improper appliance at such place in the sawmill, and that therefore the master was not negligent in furnishing an iron bolt to be thus used. In addition to this, it appears from the plaintiff’s own testimony that his injury resulted, not from the character of the metal that the bolt was made of, but from the fact that there was a defect in the bolt itself, and if a steel bolt had been used which had a similar defect, the result would in all probability have been the same. It appears from the evidence' that the defect was a latent one, and such being the case, the mere fact that the bolt broke is not sufficient to remove the presumption that the master had furnished a proper appliance to be used, the defect being of such a character that the master would not know of it and could not by the exercise of ordinary care have discovered it. If the master furnished to the machinist a bolt of proper character, or if it furnished one which was defective but the defect could not have been discovered by the exercise of ordinary care, then the master would not be liable in the event it afterwards developed that the bolt was defective and injury resulted therefrom to the servant. If the machinist whose duty it was to place the bolt in .position was a competent fellow servant, as we think the evidence would have required a jury to find, and the bolt furnished was apparently sound but had a latent defect which could have been discovered by testing the bolt, and ordinary care required this to be done, and the machinist placed the bolt in a position without making this test, then the master would not be liable to the plaintiff; for his injuries would be traceable directly to the negligence of a fellow servant. It does not distinctly appear whose duty it was to inspect the mill from time to time. It might be inferred that it was the duty of the machinist; but as the machinist was a competent servant, the defendant would not be liable to the plaintiff for an injury which
Judgment affirmed.