Crown Cotton Mills v. McNally, 123 Ga. 35

Crown Cotton Mills v. McNally

123 Ga. 35 | Ga. | 1905

Lumpkin, J.

(After stating the facts.) 1-3. If there are latent defects in machinery, or dangers incident to an employment, unknown to a servant, of which the master knows or ought to know, he is bound to give the servant warning in respect thereto. But a servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In a suit seeking to recover of a master, where it is claimed that .there was a failure of duty on his part in not giving to the servant notice or warning of a danger incident to his employment in connection with a machine, it must appear that the master knew or ought to have known of the danger in the machinery, and that the servant injured did not know and had not equal m.eans with the master of knowing such fact, and by the exercise of ordinary care could not have known of it. Civil Code, §§ 2611, 2612. If the danger is obvious, and as easily known to ±ke servant as to the master, the latter will not be liable for failing to warn bim of it. Ludd v. Wilkins, 118 Ga. 525; Hamby v. Union Paper-Mills Co., 110 Ga. 1; Stubbs v. Atlanta Oil Mills, 92 Ga. 495; Cartledge *38v. Pierpont Mfg. Co., 120 Ga. 221; Hoyle v. Excelsior Laundry Co., 95 Ga. 34; White v. Kennon, 83 Ga. 343.

4. As to fellow-servants, the duty of the master is to exercise ordinary care in the selection of them, and not to retain them after knowledge of incompetency. If he discharges his duty in this regard (except in cases of railroads, or of children of tender years), he is not liable to one servant for injuries arising from the negligence of fellow-servants. One of the risks which a servant assumes is negligence or misconduct of a fellow-servant about the same business. Civil Code, § 2610; Evans v. Josephine Mills, 119 Ga. 448; Shields v. Yonge, 15 Ga. 349. If the master has used ordinary care in the selection of servants, and has not retained them after knowledge of incompetency, he is not required to anticipate that they may be negligent, and to warn one of them of dangers which may arise from the possible negligence of others. While the presiding judge charged that if the injury occurred oil account of the negligence of fellow-servants, “nothing else appearing,” the plaintiff could not recover, he immediately followed this charge with the first and second charges complained of, as set out in the statement of facts. As he did not inform them that the master was not bound to anticipate negligence of a cpemployee and give warning against it, and as one contention in the case was whether the danger was such as to impose on the master the duty to give warning in regard to it, or was a danger arising solely from negligence of a coemployee, these charges, standing alone, did not fully submit to the jury how far the duty of the master in this respect extended. As no request to charge on the subject was made, perhaps a new trial might not result on this ground alone.

5. The plaintiff alleged, and sought to prove, that the danger was not obvious, because the top and breast of the machine were covered with cotton, and it was not possible to tell whether the door was closed or open. The defendant sought to show, that it was the duty of the plaintiff to look after what is called the “ stripper stick ” on which the_ cotton was wound, and to clean it off and put it back,; that if this had been properly done, the cotton would not have fallen down and obscured the complete view of the open door; that instead of doing this himself, he asked another employee to do it, on the occasion in question; and that if it were not done, and the cotton fell so as to wholly or partially *39conceal the open door, it resulted from the plaintiff’s own fault, or that of his coemployee, and not from any 'latent danger in the machine itself, whether the doors were open or shut. It will thus be seen that the question of whether the danger was obvious and patent, ór, if not, whether it was prevented from being so by reason of the plaintiff’s own conduct or that of a fellow-servant, was an important one. It was accordingly error for the court to inform the jury'that, in the view which he entertained of the law, it was immaterial whether the cotton fell down so as to obscure the vision, or not. Counsel for the plaintiff contends that the charge which the court gave on this subject was more injurious to him than to the defendant. But it was erroneous, and may have shut out from the jury a material contention forming part of the defense.

6. The charge in respect to the measure of damages was somewhat general, informing the jury that they should only compensate the plaintiff, if they found for him, for the loss of his arm and for pain and suffering, and that they should determine how much would be a fair and just compensation. There was, however, no evidence showing diminished earnings. Neither were the mortality tables introduced. The data on which to base the charge on this subject being not very exactly proved, it was natural that the charge on it should be general. No more specific charge was requested.

Judgment reversed.

All the Justices concur, except Candler J., absent.