90 Ga. 571 | Ga. | 1892
The plaintiff in the court below obtained a verdict for $2,000 against the railroad company on account of an injury to his hand, alleged to have been sustained while in the discharge of his duty as an employee of the defendant, without fault or negligence on his part, and by reason of the fault and negligence of other employees of the defendant in putting him in a dangerous position and giving him no warning of the danger. A new trial was refused, and the defendant excepted.
1. It was complained that the court erred in declining to charge as requested, that “if the plaintiff'was injured
2. The declaration alleged that the eccentric “fell upon” the plaintiff’s hand, crushing and maiming it. He testified that his hand was crushed and maimed by being knocked upwards and against other machinery by the' eccentric when it fell. It was contended that in this respect there was a fatal variance between the allegations and the proof, this testimony showing that the
3. The material parts of the declaration are set out in the report prefixed to this opinion. It will be seen that the ground upon which the plaintiff seeks to charge the defendant with liability, is the alleged fault and negligence of the conductor, engineer and fireman in putting him in a dangerous position and giving him no warning of the danger. It is not clear, however, whether the failure to warn, here complained Of, was merely the failure to warn him in a general way that it WTas dangerous to go under the engine and hold the eccentric while the fireman did the work necessary to disengage and remove it, or in addition to this, the failure to warn him specially that the fireman was about to remove the bolt and of the consequences which might result from its removal. Under, the evidence, the right to recover upon either theory is very doubtful. The testimony bearing upon this part of the case was substantially as follows :
While the plaintiff’ was at work as a train-hand on
The plaintiff’s version of the occurrence differs from that of the other witnesses. The engineer and the fireman testified that he was holding the upper blade, and not the lower one, and that instead of the fireman allowing his end to fall, the plain tiff let his own end fall, and that instead of striking his hand upwards, the blade fell upon it.
TJpon the question of warning, there is positive testimony of the engineer and the fireman, uncontradicted by any positive denial on the part of the plaintiff. The engineer said: “I cautioned both of them to be careful; that if they let it fall, especially the sharp end that the plaintiff had, that if he let it fall, it would cut his hand off, or his fingers, whichever it would strike. That was not more than two or three minutes before the accident happened. I told [the plaintiff], when he was under the engine, to be careful and hold his end up; that if he did not, it would fall and mash his hand in some way.” The fireman testified: “I cautioned him to hold his end up or it would be sure to cut his hands on the links. The links are sharp, but the eccentric is not. He said he was ready. So I took the bolt out, supposing that it would be all right and that he would hold his end, but he dropped it, and the consequence was
The warning here testified to, whether sufficiently specific or not as to the consequences of taking out the bolt, amounted' at least to a general warning that the work was attended with danger; and it was specific enough if the injury was caused in the manner stated by these witnesses, that is, by the falling of the blade upon the plaintiff’s hand, instead of by its striking his hand upwards.
Assuming, however, that no warning was given, it is very doubtful whether it was negligence at all to omit a general warning that the work was dangerous. Before an employer can be held liable for a failure to warn, there must be something to suggest to him that a warning is necessary. If the youth or known inexperience of the employee is such as to put the master upon notice that the employee may not realize the risk he is called .upon to encounter, the master must of course see to it that he is properly warned; but we do not .understand it to be the law that in the ease of an adult employee, about to undertake work which he is subject in the line of his duty to be called on to do, the master must assume that he is ignorant of ordinary dangers that may attend the work. The plaintiff was an adult, and had been working three or four months as a train-hand for the defendant, and the work he was directed to do on this occasion, though perhaps unusual for him, appears nevertheless to have been in the line of his duty; and if we leave out the testimony of the defendant’s witnesses