111 Ga. 427 | Ga. | 1900
Gunn instituted an action against Willingham by which he sought to recover damages, which it is alleged he sustained by reason of the negligence of the defendant while the relation of master and servant existed between them. The petition and answer raised the issue, whether the master had provided reasonably safe appliances in the work being performed by the plaintiff and.those engaged with him in a common business, and also whether the master was negligent in the employment of an incompetent servant who was handling the machinery at the time the plaintiff was injured. It is alleged that the master was negligent in each of these particulars, and that the plaintiff was free from negligence and was engaged in separate
At the time plaintiff was hurt the building was almost completed, and the derrick was taken out'of the cellar in order to carry the timbers which were necessary to complete it to the top of the building. Plaintiff had.known Brantley ever since he was a boy. They had worked together before the superintendent hired the plaintiff and Brantley to engage in this work. Brantley’s business was that of a carpenter and wood workman. Plaintiff did not know of any experience he had in the management of derricks. Previously to the time wheu Brantley took charge of the derrick he was engaged at work on another building, and when that was finished he came to this one. There was testimony tending to show that the derrick was not properly managed by Brantley, and one witness testified that, while he had known Brantley to handle smaller derricks, he had never before known him to handle a derrick of that size, and that a failure by Brantley to follow the instructions of Carey caused the derrick to fall. Evidence was also introduced tending to show that one of the guy-ropes of the derrick was fastened to a tree, another under the ráilroad iron, and the other to a stake driven in the ground; that the derrick was in a leaning position against the line which was fastened to the stake, which caused the stake to be pulled out of the ground. When the stake was pulled out of the ground the weight was thrown on the rope which broke. The stake was driven in the ground two feet, sufficiently, in the opinion of the witness, to have held the rope. At. the time of the fall Brantley was directing the operations. Another witness, who stated that he
This court ruled in the case of McGovern v. Columbus Manufacturing Co., 80 Ga. 227, that a workman engaged with two others, and having the direction of the work in the picker-room of a factory as foreman, was not the general superintend
So that, if the plaintiff was entitled to recover in this case, the burden was upon him to show this negligence. It is insisted first, that the evidence was sufficient to carry this case to the jury, that the master was negligent in not furnishing proper ropes by which the derrick was to be upheld. We do not think so. The only evidence relating to that subject is as to the size of the rope, and .that it. had been stretched in a cellar where there was an accumulation of acid. It was not shown that the rope had been affected by the acid. At best it leaves only an inference that it might have been. .Nor was it shown of what size a rope should have been to have been safely used in carrying necessary timbers to the building which was being erected. It is true that the plaintiff says that the rope used was too small; and yet, according to his own evidence, he does not know anything more than that one of the ropes broke. The manner of the breaking is explained by another witness for the plaintiff, who, in giving an account of the accident, says that a stake to which one of the ropes was attached, in consequence of the strain upon it, was drawn from the ground. If this be true, the rope bore the strain sufficiently to draw up the stake without breaking, and the fault would, seem to have been that the stake had not been sufficiently fastened. The same witness, testifying as to the breaking of the rope, says that after the stake was drawn from the ground the derrick pressed against another rope and by its weight caused it to break. So, therefore, it does not appear at all that the rope was broken because of the strain of operating the derrick. But suppose we assume that the rope was too small for this use, and even go further and assume that the rope was injured by its contact with acid, which does not appear, a sufficient reply to the plaintiff’s contention is that he knew of both facts preceding the occasion of his injuries and with this knowledge continued the work. It is declared by our Civil Code, §2612, that “A servant as
It is, however, contended that there was evidence showing that Brantley, who was operating the derrick, was incompetent, and that the master was chargeable with a knowledge of such incompetency at the time he was employed, or during the progress of the work before the injury. It was shown, even by the plaintiff himself, that as to general carpenter work Brantley was a good workman. It was shown also, by another witness for the plaintiff, that Brantley had experience in the operation of derricks. It is true that the last witness testified that Brantley’s experience had been confined to derricks of smaller size, but, nevertheless, the fact remains that he had experience in the business of using a derrick to elevate material. This evidence was not sufficient to establish even that Brantley was in
Judgment affirmed.