10 Ga. App. 329 | Ga. Ct. App. | 1912
W. F. Finley, employed by the Charleston & West
The defendant filed a demurrer, on general and special grounds, which was overruled, and exceptions pendente lite were preserved. The general demurrer was based upon two grounds: (1) that the allegations of the petition failed to show a cause of action; and (2) that the allegations affirmatively showed that the injury was caused by an assumed risk of the employment. The special demurrer was based upon the two grounds that the plaintiff failed to allege why he alone took hold of the barrel of oil, when he saw its size, and voluntarily assumed a position of danger; and that lie failed to allege the names of the train crew who were absent.
1. There was no error in overruling the demurrer. The allegations plainly set forth a cause of action resulting from the conduct of the conductor as specifically described. The act of the conductor, in pushing the barrel of oil upon the plaintiff without warning, was not an assumed risk of the plaintiff’s employment. The petition alleges plainly that the plaintiff took hold of the barrel of oil, notwithstanding its size, in obedience to the order of the conductor, assuming that he would have the assistance of the conductor in rolling the barrel from the car to the ground. The names of the two absent members of the train crew were wholly immaterial, if in fact four were needed as alleged, and only two were furnished. Counsel for the plaintiff in errqr contends that whatever danger there was in the unloading- of this heavy barrel of oil, it was open and obvious to the plaintiff; that he was not misled, and therefore he can not recover, either under the laws of Georgia; or under those of South Carolina, where the injury occurred, and that it was simply a case where the plaintiff made a miscalculation as to his strength or as to the weight of the barrel; and he relies in support of his position upon those cases decided by the Supreme Court which hold that under such facts no cause of action is shown, such as Worlds v. Georgia Railroad, 99 Ga. 283 (25 S. E. 646), where the employee was ordered to lift and carry cross-ties unaided some 100 yards; Central Railway Co. v. Henderson, 6 Ga. App. 459 (65 S. E. 297), where the employee was ordered to work under a cross-bar resting on two posts, and the cross-bar fell on him; and Freeman v. Savannah Electric Co., 130 Ga. 449 (60 S. E. 1042), where the employee attempted to work a defective
2, 3. Certain excerpts from the charge are assigned as error. These excerpts relate to the allegation that the master was negligent in failing to supply a sufficient force of workmen for the operation of the train, and in failing to supply its employees with suitable machinery and appliances for unloading heavy freight. It is insisted that these instructions were not applicable to the case, in that the plaintiff’s positive evidence proved that the proximate cause of his injury was the act of the conductor in pushing the barrel of oil directly upon him without warning, and thus excluded the other allegations of negligence. Unquestionably the excerpts objected to contain correct principles of law. They were certainly applicable to the allegations of the petition. But even if they were wholly inapplicable to any of the evidence, we do not think that the defendant was injured therebjr, or that the jury were misled into thinking, from the fact that these principles were charged, that there was evidence in the case to which they applied. As a matter of fact the plaintiff testified that there was an insufficient number of hands, and that there was a failure to furnish proper appliances to enable them to unload safely the heavy freight. But regardless of these allegations of negligence, it is manifest that the jury were authorized to find a verdict for the plaintiff, if they believed his testimony as to the act of the conductor in pushing the barrel of oil upon him without warning, irrespective of all the other allegations. In other words, where the evidence shows that the plaintiff was entitled to recover the amount of damages awarded him under one of the allegations on which he relied for recovery, we do not feel that we are required to grant a new trial because there were other allegations as to acts of negligence which he did not prove were proximate causes of his injury. If the jury believed the evidence of the plaintiff (and they had a right to believe it), he was entitled to recover, notwithstanding the fact that there were other allegations on which there was no proof. In our opinion, where two or more causes of negligence are set out in a petition, and damages are claimed also because of a wilful and wanton act
4. The plaintiff in error insists that the employee was not in
5. After giving to all the assignments of error a careful consideration, we axe satisfied that there was no material error of law committed against the defendant; that while some of the charge was inapplicable, it was not misleading or prejudicial; that the justice of the verdict rests upon the wilful act of the conductor in pushing the barrel of oil on the plaintiff. without warning and without giving him an opportunfly of escaping the result consequent upon such act. If this was the proximate cause of the injury, the plaintiff was entitled to recover damages; and the jury had the right to believe the evidence of the plaintiff on this subject. The amount of the verdict is not excessive, in view of the injury shown by the testimony of the plaintiff, and of the further fact that the jury were authorized to find that the wrong com-' plained of was attended by circumstances of aggravation.
Judgment affirmed.
J