7 Ga. App. 766 | Ga. Ct. App. | 1910
Blackman sued the railroad company for personal injuries. He was a boiler-maker in the defendant’s shops. A Pintsch gas tank, such as.is used to supply gas on passenger cars, had become dented in a wreck. The foreman ordered Blackman to repair it by a process which he prescribed, and recommended as being safe, though it was a new process so far as the shop in question was concerned. Blackman had no special information on the subject — he had never had any previous experience in the repair of such tanks. The process he was directed to use was that he should couple the tank to the compressed air pipes in use in the shops, and then heat the dented portion, with the view that as the heat softened the metal in the dent, the pressure of the air would cause this part of the tank to come back into symmetry with
The petition charged that the defendant knew (actually or constructively) that the tank was likely'- to explode when a high pressure of air was put upon it; that the plaintiff was free from fault; was inexperienced in the particular kind of work; was excusably ignorant of the dangers attendant on doing the work; was relying upon the express assurances and directions of the foreman that the work could be safely done; and that he could not have avoided the injury by any reasonable degree of care. He made four allegations of negligence: “(a) In putting plaintiff to work on said gas tank without giving him proper warning and instruction as to the danger of said work and the proper means of carrying it on; (b) in misinforming him as to the amount of pressure said gas tank would bear; (c) in turning on said compressed air and thereby increasing the pressure to a highly dangerous point, thereby causing said explosion; (d) in causing the explosion of said tank without warning or notifying plaintiff that it was likely to explode.” The defendant brings the case to this court by direct bill of exceptions, having filed no motion for new trial. Ho point is made as to the legal sufficiency of the evidence to sustain the verdict. There is a general exception to the final judgment, but no assignment of error thereon. The plaintiff in error relies solely on seven exceptions to the charge of the court,- which will be discussed in order.
The defendant in error has moved to dismiss the writ of error, on the ground, that a direct bill of exceptions will not lie in such a case; that the alleged errors were not such as necessarily to have controlled the verdict; that a motion for new trial was essential to
2. The first exception is to the effect that the court erred in not giving to the jury certain requested charges, instructing them that the petition did not allege certain acts as negligence, and that no verdict in the plaintiff’s favor could be rendered on account of these unalleged things. The judge stated to the jury the four acts of negligence relied on by the plaintiff, and explicitly informed them that the plaintiff could not recover for any other acts. In
3. The next 'exception is that the court erred in charging the jury as follows: “The defendant is not an insurer against injury to its employees. Its duty is to exercise ordinary and reasonable care with reference to places to work and things upon which the servant was required to work, and to furnish reasonably safe appliances for the use of its employees. If you find from the evidence that the defendant did this in respect to the matters involved in this case, you will find in favor of the defendant. If there was a failure on its part to use that sort of care, and if an injury occurred by reason of any negligence alleged and relied upon in the declaration, and if you should further find that the plaintiff in the case is free from fault, he would be entitled to recover.” (The italics are ours.) This and the fifth exception, in which complaint is made that the judge stated to the jury, in the language of §2611 of the Civil Code, the reciprocal duties and liabilities of masters and servants, may be considered together. The point is made that the judge should have confined the jury strictly to the particular theory charged in the petition, and that all reference to general duties and liabilities was immaterial and prejudicial surplusage. We can not concur in this view. Not only do the general doctrines constitute the foundations upon which the specific instance rests, but a statement of them also tends to illustrate and to make clearer the conditions upon which a liability would attach in relation to the particular matter alleged. There is certainly no prejudicial error in the court’s stating the general doctrine to the jury, where, by his further instructions, he so carefully limits their investigation to the particular delinquency in issue as did the judge here.
4. The next exception is to the following charge: “In this case, if you find that the plaintiff was without fault on his part, and was injured by an explosion caused by the act of the defendant’s foreman in turning on or directing the plaintiff to turn on an air pressure of sixty or sixty-five pounds into the tank under the con
5. The next exception is to the following charge: "Negligence may be shown by circumstances as well as by direct testimony, and a jury may in some instances presume negligence from the mere happening of an event. In such a case, all of the^eircumstances and surroundings accompanying the event or the happening of the event should be considered by them, and if it is such an event as in ordinary course of things would not have occurred'if the defendant company had used ordinary care, they would be authorized to presume that the company was negligent, and to place upon it the burden of 'explaining the cause of the occurrence; and, in the ab< senee of such explanation by it, they would be authorized to pre sume that the occurrence was caused by the negligence of the defendant or its agents. That applies, of course, gentlemen of the jury (as everything I shall say with reference to what constitutes negligence or not) to the allegations of negligence set up in the declaration, because you can not go out of the borders of the declaration for negligence upon which to find the defendant, liable. If it is to be found liable at all, it is because it was negligent in some one or more of the ways in which the declaration declares it was negligent. Now, this rule I have just given you must be applied with caution, and the jury should consider all the surrounding circumstances of the case, and then determine whether the rule applies in view of those circumstances.” The instruction, fairly construed, means that if the circumstances surrounding the happening of the thing that caused the injury were such as to make the in
6. What has been said above practically controls the remaining exceptions, but, to cover all the points raised, we will say a little more on the subject. Carefully analyzed, the burden of the complaint presented by all the other exceptions is that while the plaintiff was probably injured by an act for which the defendant was responsible, he ought not to hold his recovery, because he did not name that act in his petition. To make this plainer: the state of the evidence was such that the jury might have found that the explosion resulted from one of several causes: that some gas had been left in the tank, and that upon its becoming mixed with the air it exploded under the influence of the heat; or that by some chemical procéss the Pintsch gas had turned back into the original oil from which it is manufactured, and that, from the application of the air and heat, this oil had been vaporized into gas and had exploded; or that the compressed air, which is moister than the ordinary air, being forced against the hot metal under pressure, was converted into free hydrogen and -oxygen, which, in combination with air, makes a dangerous explosive; or that the pressure of the air itself caused the explosion. The plaintiff’s allegation was that the negligent cause of the injury consisted in the defendant’s agent’s “turning on said compressed air, and thereby increasing the pressure to a highly dangerous point.” Under this allegation, if the turning on of the compressed air was a negligent and materially contributing cause of the explosion, the plaintiff would have been entitled to recover under his petition, though other negligent acts not alleged, such as leaving the gas or the gas-forming oil in the tank, may also have concurred in bringing about the result. In other words, if the tank would not have exploded, notwithstanding there was some of the gas or of the oil in it, if the compressed air had not been negligently forced into it, the plaintiff had