12 Ga. App. 498 | Ga. Ct. App. | 1913
This is an action by a widow for the homicide of her husband by the alleged wrongful acts of the defendant. The case as laid in the petition is as follows: The deceased was employed as a ginner at the gin-house- of the defendant. As a part of his
The defendant filed a general demurrer, upon the grounds, that no cause of action was set forth; that it affirmatively appeared in the petition that the defendant was not negligent; that the deceased assumed the risks of the danger which brought about his death; ’that his death was the result of his own negligence; that by the exercise of ordinary care he could have avoided the injury that resulted in the homicide; and that he had equal means with the master of knowing, and by the exercise of ordinary care could have known, that the set-screw was not boxed or covered. These grounds were amplified in other grounds. There was a special demurrer to so much of the petition as averred that the deceased had been informed by the defendant that the shafting and set-screw would be covered, upon the ground that this allegation did not show a promise on the part of the defendant to cover the set-screw, and that, even treating it as a promise, it affirmatively appeared from the petition that a reasonable time had not elapsed for it to be carried, into effect; also that the deceased had no right to rely upon such j>romise, his duties not specifically requiring him to work around such dangerous machinery; and that the alleged promise of the master was a' statement merely in refereñce to his own interest, and not in reference to any personal danger to the deceased. The demurrers were sustained, and the plaintiff excepted.
Counsel’ for the defendant contends that in' no case will the-master be held to have assumed the'risk unless there has been an express complaint made by the servant in -reference to a defect or danger in some instrumentality with which he has been put to' work, and that in response to this complaint an éxpress’ promise has been made by the master to remove the defect or danger. There
Judgment affirmed.