27 Ga. App. 721 | Ga. Ct. App. | 1921
This case is controlled by the ruling Of this court in Nix v. Southern Railway Co., 4 Ga. App. 331, where it was held that “ a car-coupler who sees and knows that the draw-head and knuckle of the coupling are defective and. will not act automatically, and who, while an engine with ears attached is backing rapidly to the point where the coupling is to -be made, kicks against the draw-head and knuckle, to adjust them, just at the moment of impact, and thus gets his foot mashed, is, in legal contemplation, the author of his own injury, and can not hold the railway company liable therefor, although a signal given by him was disregarded by the engineer in thus rapidly backing the engine and cars; it not appearing that the injured employee did not see and know the speed at which the engine and cars were running;” citing Griffith v. Lexington Terminal R. Co., 124 Ga. 553 (53 S. E. 97, 4 L. R. A. (N. S.) 854). While it is true that, under the State employer’s liability act of 1909 (Civil Code of 1910, § 2782 et sec).), mere contributory negligence on the part of an employee of a railway company does not bar a recovery, but the rule of comparative damages obtains {Sherrod v. Atlanta &c. Ry. Co., 27 Ga. App. 510, 108 S. E. 908), this is not the case where the fault of the employee amounts to a lack of ordinary care, and where (to use the language of decision in the Nix case) his negligence is such as to make him “the author of his own injury.” In the instant ease it does not appear that the predicament of the plaintiff, whereby he became exposed to such imminent peril, was knownto the defendant, or in the exercise of ordinary care could have been known, so as to enable the defendant to avoid the in-
