130 Ga. 449 | Ga. | 1908
Lead Opinion
(After stating the foregoing facts.)
This ease comes before us as an exception to the dismissal of an action for damages, on general demurrer. While negligence, as a question of fact, under the evidence, is for the determination of the jury, if a prima facie case is made out, yet whether a petition on its face sets out a cause of action must be determined by the court, if a demurrer is interposed. Hill v. Louisville & Nashville R. Co., 124 Ga. 243 (52 S. E. 651, 3 L. R. A. (N. S.) 432). The general rules in regard to the duty of a master to use care in furnishing his employee with reasonably safe machinery are stated in the Civil Code of 1895, §§2611, 2612. The former section declares that the master is bound to exercise ordinary care in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary skill; and that, if there are latent defects in machinery, or dangers incident to an employment, unknown to the servant, of which the master knows, or ought to know, he must give the servant warning in respect thereto. The latter section provides, that “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by the preceding section, it must appear that the master knew or ought to have known . . of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.” There is no question of latent defects here.' Nor, as will appear hereinafter more fully, was it a case raising the question, as one of fact, whether the danger was such as the servant did not know and had not equal opportunity with the master for knowing. The plaintiff alleged that he knew of the defect, gave notice of it to the defendant, and asked to be furnished another car. Ordinarily, although a defect in a machine may be known to the servant, if the master promises to remedy it, or to supply a different machine, and directs the servant to proceed with its use, this takes the.case out of the operation of the general rule, which declares as a matter of law, on the doctrine
Eeduced to its simplest form, the plaintiff alleged, that, while operating a ear of the defendant, he discovered that the brake was out of order and would not catch; that he telephoned to the day foreman to furnish him another car, stating the defective condition of the one in use; that the foreman promised to immediately substitute another car for the one which the plaintiff was operating, but three hours and a half elapsed before this was done; that, in consequence of the defective condition mentioned," the plaintiff was compelled to exert all of his strength and to throw his weight on the brake in order to stop the car; and that, as a result of this exertion, he was later afflicted with hernia. It may be doubted whether the allegation in regard to the foreman was sufficient to show that he was the alter ego of the defendant, and, therefore, whether his promise was shown to be the promise of the master; or whether the mere allegation that a new car was not substituted, for three hours and a half, after notice was given to the foreman, was a sufficient allegation to show that it could or ought to have been furnished sooner, or that there was any negligence on the part of the master in that regard. Moreover there was no distinct allegation that the car operated by the plaintiff
In Worlds v. Georgia R. Co., 99 Ga. 283 (25 S. E. 626), a coal
Judgment afftrmsd.
Concurrence Opinion
I concur in the result reached in this case, but not in all of the reasoning in the opinion.