131 Ga. 715 | Ga. | 1908
(After stating the foregoing facts.)
In a number -of States statutes have been passed in reference to the duty of mine owners or operators as to furnishing timbers to the miner and as to the use of them by the latter, and other matters touching the rights and duties of the two. In this State theru is no statute on the subject. The general principle of law involved in this charge is well supported by authority. In the leading case of Finalyson v. Utica Mining & Milling Co., 67 Fed. 507 (14 C. C. A. 492), the rule is thus stated by Sanborn, J. (p. 510) : “It is the general rule that it is the duty of the master to exercise ordinary care to provide a reasonably safe place in which-the servant may perform his service. Railway Co. v. Jarvi, 53 Fed. 65 (3 C. C. A. 433, 10 U. S. App. 439). But this rule can not be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. The duty of the master does not extend to keeping such a place safe at every moment of time as the work progresses. The servant assumes the.ordinary risks and dangers of his employment that are known to him, and those that might be known to him by the exercise of ordinary care and foresight. When he engages in the work of making a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of such a place, and by his acceptance of the employment the servant necessarily assumes them.”
The trial judge in that case had directed a verdict for the defendant. The majority of the Circuit Court of Appeals were of the opinion that, under the evidence, this direction was right. Caldwell, J., filed a vigorous and interesting dissenting opinion,^ holding that the question of negligence should have been submitted to the jury. Among other things he said: “It is said in the majority opinion that ‘the complaint in this case is that the master was negligent because it did not, before Finalyson commenced to 'timber, safely timber and make safe a place necessarily made dangerous by the progress of the work which it had employed
In’Heald v. Wallace, 109 Tenn. 346 (71 S. W. 80), it is said: “The general rule of law — the common law — making it the duty f the master to furnish the servant with a safe place to work is usually applied to a permanent place, and does not apply to such places as are constantly shifting and are being transformed as the direct result of the servant’s labor, as a room or place to work in a mine.” The charge now under consideration appears to have been derived, at least in part, from the decision last cited, and to have followed it closely. See also White on Personal Injuries in Mines, §195; 2 Bailey on Pers. Inj. Mas. & Serv. §§3023, 3028; 2 Labatt on Master & Servant, §588; Rolla v. McAlester Coal Mining Co., 6 I. T. 404 (98 S. W. 141); Watson v. Kansas & Texas Coal Co., 52 Mo. App. 366 (4); Oleson v. Maple Grove Coal & Mining Co., 115 Iowa, 74 (87 N. W. 736); Petaja v. Aurora Iron Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. R. 505); Armour v. Hahn, 111 U. S. 313 (4 Sup. Ct. 433, 28 L. ed. 440); Consolidated Coal and Mining Co. v. Clay’s admr., 51 Ohio St. 542 (3a), (38 N. E. 610, 25 L. R. A. 848); City of Minneapolis v. Lundin, 58 Fed. 525 (7 C. C. A. 344). The exact point has not been decided in this State, but it has been held that where a master employs a servant to repair defective machinery, the rule as to furnishing reasonably safe machinery does not apply to the machine to be repaired. Green v. Babcock Lumber Co., 130 Ga. 469.
It would seem that if an entry or room in a mine has been made, so that emplees must pass to and fro in it, or be engaged in working in a place thus permanent or quasi permanent in character, the general rule as to the duty of the master ought to apply. Highland Boy Gold Mining Co. v. Pouch, 124 Fed. 148 (61 C. C. A. 40); Union Pacific Ry. Co. v. Jarvi, 53 Fed. 65 (3 C. C. A. 433). But the case now under consideration is not of that character, and does not require a decision as to when an entry or room in a mine may become a place of work, which the master must employ due care to keep safe. • Here the miner was engaged in tearing down, or “drawing” the pillars of coal which had been left to support
' It is doubtful whether the evidence authorized a charge on the subject of whether the master, or one occupying the position of an alter ego of the master, directed the servant to work in a particular place where the injury occurred and assured him or represented to him that it was a safe place, and that .the servant relied on such statement, so as to'raise the question of the effect of such assurance or representation upon the diligence of the servant, and the question of whether the servant might rely on superior knowledge on the part of the master or his alter ego in regard to such matters. There was also no proper request to charge more fully tlian was done on the subject of any special circumstances affecting the general rules laid down in regard to the duty of a master in furnishing a safe place for a servant in which to work.
Judgment affirmed.