25 Ga. App. 794 | Ga. Ct. App. | 1920
1. Where a petition against a railroad company is filed, and is later dismissed on motion of' the plaintiff, the allegations therein cannot be introduced in a subsequent action between the same parties, as admissions on the part of the defendant company, where it is not shown that the answer of the defendant cither admitted or failed to deny the averments of the petition. The fact that the petition in the former suit was prepared and signed by an attorney employed for the plaintiff by the railway company, in furtherance of what was then regarded as a friendly suit for the purpose of consummating a settlement of the case, would not alter the rule.
2. “ The rule of law that a servant assumes the ordinary risks of his employment makes it his duty to exercise his own skill and diligence to protect himself, and applies alike whether the master be engaged in interstate or intrastate commerce.” Hightower v. Southern Railway Co., 146 Ga. 279 (1) (91 S. E. 52, L. R. A. 1917C, 481).
3. It is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants, but this rule does not apply where the work for which the servant is employed is of such nature that its progress is constantly changing the conditions as regards the increase or diminution of safety. Where a servant is injured when engaged in a character of work to which the unsafe conditions are incidental, the master is not liable for failure to provide a safe place to work. The hazards thus arising are regarded as the ordinary dangers of the employment, and the servant assumes such risks. Louisville & Nashville R. Co. v. Dunn, 21 Ga. App. 379 (94 S. E. 661).
4. Where, under the allegations of a petition, there were several different but concurrent causes which together operated directly in bringing about the injury, the fact that one of the causes, without which the injury would not have been sustained, was a risk assumed by the servant’s employment, would not necessarily absolve the defendant from liability. Barrett v. Savannah, 9 Ga. App. 642 (72 S. E. 49); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713).
5. The grounds of negligence alleged in the petition are set out in the statement of facts- below. The first and second grounds were not sustained by the evidence of the plaintiff; the only evidence to sustain the second ground amounted to a ■ mere conclusion; and the, danger resulting' from the negligence charged in the third ground was an assumed risk incident to the performance of the particular task upon which plaintiff was engaged. The judge did not err in granting a nonsuit.
Judgment affirmed on main hill of exceptions; cross-hill dismissed.