142 Ga. 543 | Ga. | 1914
Lead Opinion
(After stating the foregoing facts.) The petition was dismissed on general demurrer. It was contended that the plaintiff assumed the risk of the danger arising from the defective motorcar, and that this appeared upon the face of the petition. By the Civil Code (1910), § 2782, it is declared: "Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier, or, in case of death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband, or child, or children of such employee, . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defects or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment;” provided that no recovery can be had "if the person killed or injured brought about his death or injury by his own carelessness amounting to a failure to exercise ordinary care, or if he, by the exercise of ordinary care, could have avoided the consequences of the defendant’s negligence.” The next section provides that the fact that the employee may have been guilty of contributory negligence, not amounting to a failure
In dealing with the doctrine of the assumption of risks by an employee, the difference between ordinary and extraordinary risks must not be overlooked. Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master’s negligence. The expression, “extraordinary risks,” is generally used to describe risks arising from the negligence of the master, and they are generally held not to be assumed unless they are known or obvious. 2 Bailey, Per. Inj. (2d ed.), § 356. Different views have been advanced by different authorities as to the basis of the doctrine of assumption of risks by an employee. Many of them declare that it is based upon the contract of employment, and that impliedly a servant agrees to assume not only the risks of ordinary dangers incident to the business, without negligence on the part of the master, but also those arising from the negligence of the master, after they have become known to the servant or are obvious to him; and that if he nevertheless continues to perform the service in view of the risk thus existing, at least without promise of correction, or other modifying circumstances, he can not recover for an injury arising therefrom. Other authorities contend that the doctrine of assumption of risks, at least so far'as the risk arises from negligence on the part of the master, is based on the maxim “volenti non fit injuria,” which declares in substance that he who consents to an act will not be heard to claim that he is wronged by it. Still others treat the action of the servant in remaining in the
It might be contended with some force that the broad language employed in the section of the statute first above mentioned was such as to exclude the doctrine of the assumption of risks. But as the legislature, in a later section, has expressly provided that the employee shall not be held to have assumed the risks of his employment in any case where the violation by the common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee, it would seem that, as to defective machinery and the like, the defense of assumption of risks remains open except in the case provided for. This has been held by the Supreme Court of the United States, in construing the Federal employer’s liability act of 1908, which is quite similar to the act of the legislature of Georgia of 1909, codified in the sections already cited. Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635). See also: Barker v. Kansas City &c. Ry. Co., 88 Kan. 767 (129 Pac. 1151, 43 L. R. A. (N. S.) 1121); Freeman v. Powers (Tex. Civ. App.), 144 S. W. 1033. In Corley v. North Car. R. Co., 128 N. C. 534 (39 S. E. 43, 57 L. R. A. 817), the North Carolina employer’s liability act was held to exclude the doctrine of assumption of risks arising from the negligence of the master in furnishing defective machinery or appliances. But that statute not only contained a general statement of a right by an employee of a railroad to recover for an injury arising from such a defect, but also declared that any contract or agreement, express or implied, made by any employee of such a company to waive the benefit of the section of the act declaring the general right of recovery should be
Assuming that the statute of this State does not affect the doctrine of assumption of risks as to defective machinery furnished by a railroad company, except where there is a violation of. a statutory duty, still the established rule is that if a risk arising from a master’s negligence during the service is assumed by the servant, the clanger must be known by the servant or be such as to be obvious to a man of ordinary prudence; and where the theory of implied contract as the basis of the doctrine of assumed risks prevails, as in this State (Howard v. Central Ry. Co., 138 Ga. 537 (3), 75 S. E. 624; Brown v. Rome Machine &c. Co., 5 Ga. App. 142, 62 S. E. 720), the servant must choose whether he will continue in the employment subject to such risks, so as to impliedly attach it as an incident to his employment or to waive the liability of the master. We need not stop to mention the exception in regard to liability of a railroad to a servant for injury arising from the negligence of a fellow servant, which is not here involved. In Seaboard Air-Line Ey. Co. v. Horton, supra, Mr. Justice Pitney said: “Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. . . When the employee does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment without objection, or without obtaining from the employer or his representative an assurance that the defect will- be remedied, the employee assumes the risk, even .though it arise out of the master’s breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or,until the particular time specified
Can it be declared in this case, as matter of law, that the plaintiff had assumed the risk? The plaintiff alleged, that the company furnished a car to transport the section-hands to and from their work; that it was defective; that this defect was not known to the plaintiff; that he was ignorant of machinery, and could not have discovered the defect by examination; that it was no part of his duty to manage, inspect, or repair the motor-car; that the cross-ties were rotten at the place where he was instructed to assist in pushing the car; that he was not aware of this, and was free from fault; but that the conditions had existed several days before the injury, and the defendant knew or could have known of them by the exercise of ordinary care. If these things are true (and they are admitted on general demurrer), it can not be declared as matter of law that the plaintiff was debarred from recovering on the ground that he had assumed the risk. He expressly denied that he knew of the risk, or that it was any part of his duty to examine the car, or that he could have discovered the defect by inspection, on account of his ignorance of machinery. He thus negatived both knowledge on his part and the obvious character of the danger, or equal opportunity with the master for knowing of the danger. It was the duty of the master to exercise ordinary care to furnish safe machinery. If ordinary care required inspection to discover the defects and keep the machinery in good condition, the duty of inspection would fall on the master and not on the servant, unless he was one who was required to inspect. It can not be said that the plaintiff had equal opportunity with the master for knowing the defective and dangerous condition of the car. The mere allegations that the car was not working properly, that the engine would constantly cease action, and that the men were compelled to walk and tug the car
That the plaintiff in the present case was a' track-hand carried to and from the places where he was to work did not charge him with knowledge of the condition of the cross-ties at intervening places in the road over which he passed in being transported to and fro. But it may be doubted whether there is a duty on the part of a railroad; company to maintain sound cross-ties on its main line for its employees to walk upon, or whether failure to do so ordinarily constitutes negligence as to such employees. East Tenn. &c. Ry. Co. v. Reynolds, 93 Ga. 570 (20 S. E. 70).
From what has been said it follows that it was error to dismiss the petition upon general demurrer.
Judgment reversed.
Dissenting Opinion
dissenting. We think it clear from the plaintiffs allegations that he knew that the gasoline motor was not properly working, that it would constantly cease action, and that he and other members of the section-gang would have to tug the car to the station. He was told that pushing the car forward would put the motor in motion. With this knowledge, and with the intent to start the motor, he assisted in pushing the car forward. The risk of having the motor to suddenly start was obvious, and whatever' danger attended the movement of the car as the result of the motor being put in motion was voluntarily assumed by the plaintiff in undertaking to push the car at the command of his foreman.
With respect to the rotten cross-ties as a participating factor in causing his injury, the plaintiff does not positively allege the railroad company’s knowledge of them, but seeks to impute notice because they had been in that condition for several days. He was a track-hand, and his duty was to repair the tracks. The duty to make necessary repairs imposed the duty to discover the condition of the track which would require the repair to be made. The plaintiffs means of knowledge were greater than the company’s, as the latter’s knowledge came from the former’s inspection. Besides, it is to be doubted that the condition of the ties was any part of the cause of the injury. Prom the plaintiff’s description of the manner of receiving the injury, the sudden starting of the engine of the motor-car was the primary and sole cause of his injury.
