21 Ga. App. 340 | Ga. Ct. App. | 1917
(After stating the foregoing facts.) We do not consider it necessary to refer to any of the special demurrers, as in our opinion none of them point out any such substantial defects as, required correction by amendment. It is enough to say that if the petition be good as against the general demurrer, it presents the plaintiff’s complaint with sufficient certainty and definiteness; for both the injury alleged and the negligence to which it is ascribed are so clearly indicated as to put the defendant on ample
The first question, therefore, which presents itself for decision is whether or not the construction and maintenance of a sewer intended to drain surface-water from private property and from the streets of a municipality, as well as to remove sewerage from the property of private individuals within the city limits, is a governmental of ministerial act, where the city is acting (as alleged in the petition in this case) under charter authority and is itself building or constructing such sewer. The decisions are practically uniform in holding that the duties of municipal authorities in
Numerous cases in our own reports, some of' which are above referred to, establish the right of an individual to recover from a municipality on account of defective or improper construction of drains or sewers, resulting in flooding' or otherwise injuring pri
The construction of the new sewer, and the maintenance of the old sewer from alleged defects in which the injury in this case resulted, both coming within the scope of the ministerial duties of the municipality, there is therefore no merit in the ground of thé demurrer insisting that the construction and maintenance of sewers involve the exercise of purely governmental functions for which the city could not be held liable.
2. The petition alleged that the city under proper charter authority was proceeding to erect a new sewer without the intervention of a contractor, and that the husband of the plaintiff lost his life in consequence of defects in an old sewer previously constructed by the city, adjacent to the one on which he was at work, which defects had existed for a time sufficiently long to charge the city with notice, some evidences of which being in fact visible, coupled with further negligence on the part of the city in removing the surrounding earth which supported the old sewer and thus subjecting it to a strain which, on account of its defective construction, it was unable to withstand. On the general, proposition, the following quotation from 4 Thompson on Negligence, § 3916, is both pertinent and comprehensive: “The construction by a city of a sewer is a ministerial work, and it will be liable for an injury to one employed by it in such construction, caused by the careless or unskillful manner of performing the work. A city can not escape liability for injuries to one. of its employees engaged in constructing a sewer, caused by the unskillful manner of performing the work, on the ground that, the city itself, through its superintendent of streets, constructed the sewer, instead of letting out the contract to the lowest bidder as required by its charter; since, as it was given power to establish and regulate sewers, it was acting within the general .'scope of its power in constructing the sewer, and
3. In determining, therefore, whether the deceased assumed the risk arising from the condition of the old sewer which burst and brought about his death, we must appfy the same rules which obtain where the servant is at work for a private individual. In other words, the servant assumes no' more or greater risk because of the fact that he is serving a municipality than if he were serving a private individual or private corporation. Generally a servant assumes such risks incident to the employment as by exercise of ordinary care and prudence on his part he might discover; but this means only the usual and ordinary risks of the particular business which are obvious and patent, and does not ordinarily impose upon him the burden of making any active or positive effort to ascertain or discover defects or dangers, nor does he ordinarily assume the risks which he might have so ascertained or discovered by such investigation. See 2 Cooley on Torts (3d ed.), 1043, 1044. Again, it is essential to the assumption of risk that the servant should not only know of the defect from which the injury arises, but that he should appreciate the danger, or that the danger should be manifest to a man of ordinary intelligence and experience in the line of work in which he is engaged. An adult servant is. of course presumed to possess ordinary intelligence and capacity and to comprehend such dangers as are obvious to a person of ordinary understanding and experience; and should he rely upon any want of such capacity, he must show that the master had notice of his deficiency. An obvious and patent risk is one so plain that it would be instantly recognized by a person of ordinary intelligence who is familiar with the particular business. If the servant knows the danger, or if it is as obvious to him as to any one else, he obeys an order to work in a dangerous place at his own peril, and by undertaking to work in such a place and with such knowledge he as
In a suit for personal injury by a servant against the master, where the right of recovery is dependent upon the negligence of the master in failing to inspect the premises and where the duty to inspct was one which rested upon the injured servant, the servant can not recover for an injury sustained because of his failure to inspect. Stewart v. Savannah Electric Go., 133 Ga. 10 (65 S. E. 110, 17 Ann. Cas. 1085). But even where no special duty rests upon the servant to inspect the premises, notwithstanding he may . 't be required to make any .active or positive effort to ascertain or dioccver defects or dangers in the place where he is directed to work “he must exercise his intelligence; and when a situation suggests investigation and inspection in order that its dangers may fully be disclosed, he is under the obligation of investigating and inspecting” (18 B. C. L. 642, § 137); but “latent or concealed dangers or defects he is not bound to discover, it being the duty of.the employer to warn him of these; but he is held to a knowledge of all such as are patent or obvious. While, however, open and obvious perils may not be made the foundation for a recovery for injuries sustained by reason thereof, it must appear, in order to defeat the employee’s action, that the danger was in fact obvious to one in his situation. Time and opportunity for inspection and investigation must have been afforded to him. Each case must be determined upon its own facts, the decision being properly within the province of the jury.” 18 B. C. L. 643, 644. But though an employee is bound to exercise ordinary diligence in observing perils by which he is menaced, he is entitled to proceed on the presumption that the employer has fulfilled the obligation to provide him with a safe place to work, and is not required to' anticipate the existence of possible dangers not clearly suggested to a man of ordinary intelligence, familiar with the business, by what is apparent or obvious in his surroundings. “The employee may presume that all precautions required of the employer have been taken, that all tools, appliances, and places are fit and suitable for
It is the master’s duty to provide a reasonably safe place to work and to maintain it in a reasonably safe condition, and-the servant can rely on the performance of this duty, since ordinarily dangers arising from an unsafe place are not included within the risk of the business assumed by the servant. King Manufacturing Co. v. Walton, 1 Ga. App. 403 (3) (58 S. E. 115); Georgia Railroad v. Hunter, 12 Ga. App. 294 (7) (77 S. E. 176); Betts Co. v. Hancock, 139 Ga. 198 (77 S. E. 77). The fact that the servant assumed the risks of a particular employment will not exempt the master from liability for fafiure to furnish a safe place to work if there be no contributory negligence on the part of the servant. Middle Georgia &c. Ry. Co. v. Barnett, 104 Ga. 582 (2) (30 S. E. 771). It is insisted in this case, that, conceding the duty of the master to furnish a safe place to work, the servant must likewise exercise ordinary care in discovering defects therein (Chenall v. Palmer Brick Co., 117 Ga. 107 (4) (43 S. E. 443), and that un
The case of Love v. Atlanta, 95 Ga. 129, 133 (22 S. E. 29, 51 Am. St. R. 64), cited by counsel for the plaintiff in error to support the proposition that no municipal liability arises on account of the failure of the officers, agents, or servants of the city to exercise ordinary care in safeguarding those employed in the construction and maintenance of sewers designed to preserve the public health, aside from all else, is clearly distinguishable on its facts from the case made by the petition under consideration. In that ease the plaintiff was injured while passing along the streets of the 'city, through the negligence of a servant of the defendant in permitting an animal attached to a garbage cart in charge of said servant to run away and collide with the buggy of the plaintiff. The decision in that case, that no right of action existed, was predicated upon the fact that the mule and cart causing the damage were actually in use at the time by the city under the direction of its health board, and the servant of the city charged with driving the cart was then employed in cleaning the streets and removing therefrom such offensive substances as usually accumulate in streets of thickly populated cities, which if not removed woit'ld endanger the public health. The court held that in removing the garbage the driver and the mule were engaged-in-the performance of a governmental and not a ministerial function. It would be stretching the decision in the Love case beyond the bounds of rpason, and certainly would be in principle opposed to the uniform rule of liability fixed in other jurisdictions, as well as in this," to hold that where one employed by á municipality was injured through its negligence while he was engaged-in the construction of something to be thereafter used in the preservation of the public
Judgment affirmed.