8 Ga. App. 618 | Ga. Ct. App. | 1911
The case comes up on the sustaining of a general demurrer to the plaintiff’s petition. It is alleged that the plaintiff was employed as a common laborer in the defendant’s plant. The defendant had, lying on the ground, a piece of iron, nine feet in length, three feet in width and one foot in thickness, which tapered off at each end, being somewhat irregular in shape. Its actual weight was about 2400 pounds. The defendant, through its foreman, directed the plaintiff and nine others to move this piece of iron by placing five hand-bars under it and raising it and carrying
The grounds of negligence assigned are, (l)'that the defendant furnished incapable and incompetent hands, that is, hands inefficient to carry the weight of the load, and (2) that it wrongfully represented to and assured the plaintiff that the piece of iron weighed only 1100 pounds,, when as a matter of fact the defendant and its foreman knew that it weighed about 2400 pounds, it being explained in this connection that if the- iron had weighed only 1100 pounds, as represented, the ten hands could have carried the same without injury to the plaintiff. The defendant is charged with both actual and constructive knowledge of the weight of the iron. The plaintiff’s lack of knowledge, actual or constructive, is also asserted.
AYe think that the petition sets out an actionable1 transaction, and that the court erred in sustaining the general demurrer. The gravamen of the petition is that the defendant violated its duty of not exposing the plaintiff as one of its workmen to an abnormal risk of danger which he would not knowingly have assumed. The liability of the master to the servant is frequently predicated of transactions involving a quasi misrepresentation of the risk, — that is, of cases where the master, without actually intending to deceive the servant, allows him to go ahead and work in the face of danger unknown to the servant, without warning him of the danger. See Labatt, Master and Servant, § 59. In this case the petition alleges not mere constructive culpability against the master, but actual
Able counsel for the defendant in error does not so much seek to controvert the soundness of the proposition we have just been discussing; he rather seeks to avoid it by asserting the proposition that the injuries in the case at bar must be attributed to the negligence of a fellow servant, rather than to the negligence of the master. The view he presents is that since the immediate cause of the falling of the piece of iron, and the consequent injury to the
If it turns out at the trial that the plaintiff’s injury did not result from the dangerous situation produced by the. defendant’s wrongful misrepresentation as to the weight of the iron, but was caused by Smith’s negligently turning the hand-bar loose, this will, be good as a defense. If it turns out at the trial that the injury resulted from Smith’s general physical incompetency, i. e. from the fact that he could not have supported the weight of his proportionate part o'f the iron, even if it had weighed only 1100 pounds, then that incompetency, or rather lack of physical capacity, may be so far regarded as the proximate cause of the injury as to preclude the plaintiff from recovering, on the theory that he voluntarily assumed the risk of lifting 1100 pounds with the help of a boy not capable of bearing his proportionate part of that load — he (the servant) not being misinformed as to the boy’s age and physical development. These things, which able counsel for the defendant has presented in his argument, are not disclosed by the petition, and, if they exist in the case, can be set up only as matter of defense, to be passed on by the jury under appropriate instructions. The judge erred in sustaining the demurrer. Judgment reversed.