1 Ga. App. 403 | Ga. Ct. App. | 1907
The plaintiff brought suit for damages resulting from personal injuries received by him while in the discharge of his duties as an employee of the defendant. There was a demurrer, which was overruled, and exceptions pendente lite were filed. On the trial a verdict was rendered for the plaintiff. The defendant filed a motion for a new trial, which was overruled. The defendant excepts to the decision overruling the demurrer, and also to the decision refusing a new trial. In the amended motion for a new trial, several assignments of error are made as to the verdict of the jury, as being contrary to certain portions of the charge, and also, that certain portions of the charge were erroneous. These assignments were not argued, and are not covered by the brief, and will be therefore considered as abandoned. It was insisted before us that “the verdict was contrary to the physical facts as disclosed by the evidence, as follows: Plaintiff testified, that he was the outside night-watchman, and that his duties required him to look after the boilers, clean them out, and fire them up every morning, and have steam ready for the dynamos and to supply the slashers, and that he also had to keep water in the boilers; and when there was too much water in the boilers it would whistle, and when there was not enough it would whistle. He was injured about a quarter to 5 o’clock Tuesday morning, February 14. He had kept a fire in the boilers all of Monday night before he was scalded the next morning, in order to keep steam in the pipes and prevent their bursting on account of the cold weather. He had tried to revive the steam in the boilers that morning, and succeeded with two of them, but the other he failed to make hold water, after he had cleaned the clinkers out of the furnace, and then went to the blow-off valve, located on the outside of the brick wall which enclosed the boilers, to see if he could find out where this particular boiler was leaking. This blow-off valve was about two feet above the ground, in the pipe which led from the boiler that failed to generate steam. He caved into the hole which had been dug into the ground around this pipe, where it led down to a horizontal waste-pipe. This blow-off valve was used only to empty the water from the boiler, and not to put water info the boiler. The boiler was supplied by water from pumps located in another part of the structure. He did not turn the valve, but got his hands on it, and found it was shut. Then he
We have thus given in full the facts set out in the ground of the motion illustrating the controlling issues in the case. Based upon these facts, and the law applicable thereto, the plaintiff in error insists that it is entitled to have the verdict set aside and a new trial granted, (1) because the verdict is not only without evidence to support it, but is positively contrary to the undisputed physical facts in the ease; (2) because plaintiff was unquestionably and indisputably guilty of such contributory negligence as would defeat his recovery; (3) because there is a fatal variance between certain material parts of his declaration and the proof. We will consider these grounds in the inverse order in which they are here stated.
The variance between the allegation and the proof, which is
It is said that the plaintiff was guilly of such contributory negligence as would defeat a recovery, even conceding that the defendant was negligent in leaving the hole around the pipe near the blow-off valve from Saturday evening until Tuesday morning, the time he was injured; because, by ordinary care, he could have avoided the consequences to himself caused by this negligence. In support of this proposition, it is insisted that the plaintiff’s owr
It is not the law that an act of an employee in the zealous discharge of his duties, which would be entirely harmless but for the ■preexisting negligence of the master, is such an act of culpable negli
A suit by an employee will not be barred on the ground that he was guilty of contributory negligence in respect to the act which was the real cause of his injury, unless it is shown that he knew, or ought to have known, of the conditions which rendered the act so done an imprudent one. 1 Labatt on Master & Servant, §319. “Negligence can only be affirmed in respect to situations and conditions known to the party to whom it is imputed.” ' Brown v. Louisville R. Co., 111 Ala. 275. “The mere fact that if the servant had not done a certain act he would not have been injured is, of course, not a bar to his maintenance of an action, if that act is not a culpable one, considering the circumstances.” 1 Labatt on Master and Servant, §323. The employer is not allowed to escape responsibility where the intervening act of the employee, although it may have contributed to the cause of the injury, was done without knowledge that it would be dangerous, and would not have been dangerous but for the. pre-existing physical conditions of danger due to the employee’s negligence. Therefore, if we concede that the plaintiff in this case did in fact turn open the valve so as to permit the hot water to escape and fill up the hole around the pipe, such an act could not prevent his recovery, where it is dear that he was ignorant of the existence either of a crack in the
It is next insisted, that if the plaintiff did not himself turn on this valve and permit the water to escape into the hole, he must have allowed some trespasser to come on the premises and do so, and that this would have been an act of negligence on his part which would defeat recovery. We are inclined to think that this suggestion is too improbable for serious consideration. But even if it were true, it would not, as a matter of law, prevent a recovery. Impossibilities are impossible, and the law neither requires nor expects their performance. The presence of a trespasser might have been entirely consistent with the plaintiff’s discharge of duty. He could not be present at every point of the premises or prevent„every possible trespass.
It is also insisted, that the plaintiff was furnished by the defendant with a lantern for the purpose of making "night the same as day to him upon the defendant’s premises;” that this lantern was in good condition, and that its light was sufficient to put him on notice and cause him to investigate before stepping into the hole of hot water; that it did permit him to see the steam arising from around the pipe, and that the rising steam ought to have given him warning of the danger. We think the light of the lantern is somewhat magnified by the distinguished counsel when he claims that it "made night the same as day.” It was poetic license that authorized Portia to say to Nerissa, "How far that little candle
In the next place it is insisted with a great deal of earnestness, by the very able counsel for the plaintiff in error, that the verdict is without evidence to support it, because it is positively contrary to the undisputed physical facts of the case; that these physical facts prove that it was impossible for the plaintiff to have been injured in the manner in which he says he was injured. The plaintiff testified that he was injured by the caving in of the dirt around the hole, and his feet falling into the hot water. He does not say how the water got into the hole, though he does say that the valve was shut when he put his hand on it. It is true that the water could- not have gotten down into the pipe below the valve if the valve had been shut securely and was itself in a perfectly sound condition. We are not called upon to suggest any theory explaining the presence of the water in the hole. This was a question for the jury. Difficult and perplexing questions of fact are committed by the wisdom of the law to the solution of the jury. The great Chief Justice who but this very week left us, to solve the last great mystery, declared, that “juries have no higher function than to solve mysteries.” Central Railroad v. Rouse, 77 Ga. 407. And this wise statement has been approved by Justice Cobb in Southern Ry. Co. v. Webb, 116 Ga. 164. With the very limited practical knowledge we possess on such questions, we might, however, suggest several ways in which this hot water might have gotten into that hole. The valve might have been partially open all night. The crack in the pipe was very small. The water might have been constantly flowing slowly from the boiler, its intense heat lasting some time because, although the night was very cold, the
It seems to us in this case that the master did not measure up to the full performance of his duty as imposed upon him by law. It is an elementary principle that masters owe to their servants the duty of providing them a reasonably safe place in which to work, and of maintaining it in a reasonably safe condition during the employment. This is a positive duty which the master owes, and the servant has a right to assume that it will be fully performed. 20 Am. & Eng. Enc. of Law (2d ed.), 55, 56. If there are any holes or excavations on the premises, about or over which the servant must pass in the course of his work, the master must take reasonable precaution to protect the servant from injury, by erecting proper barriers, or otherwise; and if he neglects to do so, he is liable in case the servant isuinjured by reason thereof. Indiana Pipe Co. v. Newbaun, 21 Ind. App. 361; Frye v. Bath Gas Co., 94 Maine, 17. If there are dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he must give the servant warning in respect thereto. Civil Code, §2611. When the servant injured did not know and had not equal means of ¡mowing of the danger, and by the exercise of ordinary care could not have known thereof, he can recover. Civil Code, §2612. By the undisputed facts in this case it is clearly shown that the master knew of the existence of the danger, permitting it
There may be mysteries in this case. There may be some doubt as to how the hot water got from the boiler, past the valve, and into the hole; but there is one fact that is clear, and that is that the employee, when hurt, was in the line of his duty, and was trying to find out “the trouble,” in order that he might save his master’s property from threatened injury. Possibly the jury, in solving the perplexing mystery of the presence of the hot water in the hole, gave the benefit of any doubt which may have been on their minds to the vigilant employee. The law on the subject of negligence and contributory negligence was fully given in charge by the learned trial judge. The verdict of the jury was consistent with reasonable inferences deducible from the evidence, was not inconsistent with the physical facts and was approved by the court. This court will not disturb the judgment refusing to grant a new trial. Judgment affirmed.