1 Ga. App. 88 | Ga. Ct. App. | 1907
-King brought suit against the railway company for personal injuries received by him pending his employment as a bralceman. He was hurt; by being - struck by an overhead bridge, at Magnolia-street crossing in the city of Atlanta. This bridge was located over a part of the tracks of the Western & Atlantic Railroad Company, which were being used by the Seaboard AirLine Railway in reaching its freight depot, in the center of the city, from HowelFs station,'..three or four miles away. There were no “telltales” or-.other, means of giving warning of approach to the
The petition alleged, as ground of negligence, the breach of defendant’s duty to plaintiff, in that it failed to see, before allowing the train, on which petitioner was employed, to pass under the bridge, that the same was a sufficient distance from the track for the body of petitioner, located as he was, to pass thereunder in safety; also, that it failed to see that all proper and sufficient “telltales,” guard ropes, or other devices were placed at a safe and sufficient distance from the bridge to put petitioner on notice of the approach thereto, so that petitioner could have protected himself from coming in contact with the bridge. By an amendment the plaintiff alleged the following further ground of negligence: “After the train was made up, and it was starting towards Howell’s station, your petitioner, in the discharge of his duties as brakeman, climbed the front end of the front car, next to the engine, the train being already in motion, and went back, along the top of said car, to let off the brakes. It was necessary for him to make great haste, for the reason that the brakes were on and the train had started to move, and it was not only his duty to release the brakes, but to do it as quickly as possible. For this reason he hurried up the front end of the car, and hurried alpng the top of the first car and hurriedly let off the brake on that car, and then made as much haste as he possibly could to pass on to the second car for the purpose of letting off the brake on that car, his intention being to then pass on to the third car, and let off the brake on that one. So urgent was the necessity to let off these brakes quickly that your petitioner’s mind .was completely engrossed and absorbed with the performance of' that duty, and he was hurrying along the top of the second car, with his back towards the engine and the bridge which- the train was approaching, when he was knocked off the second car, near the rear end, as set forth in his original declaration. At the time he was knocked off, his mind was intent upon letting off the brakes on that car, to the exclusion of every thought about the bridge. And your petitioner
It can hardly be questioned that a jury would be authorized to find that, as to a brakeman whose duties require his presence on the top of the cars, it is an act of negligence for a railway company to maintain across the tracks, without “telltales”' or other ■efficient means of warning, an overhead bridge, so low as to strike employees passing thereunder. Savannah Ry. Co. v. Day, 91 Ga. 676 (1); Stirk v. Cen. R. Co., 79 Ga. 495. These cases also hold that the question of the plaintiff’s contributory negligence in such cases is for the jury, and is not to be resolved in the defendant’s favor by a nonsuit. But it is contended that the plaintiff is precluded from recovery in the case, for that the master’s negligence, in maintaining the low.bridge, was one of the risks assumed by the servant, because he knew there was such a low bridge and knew where it was located. The theory that the servant’s knowledge or ignorance of the dangerous instrumentality by which he is hurt determines the absence or the existence of culpability on the master’s part has been the subject of much judicial decision, in each and all of its various phases. With unanimity of accord it is agreed, that if the servant knows, at the time of the injury, of the defect and of the danger, and is in mental position to be aware of both, the master is not to be held liable, whether the question be viewed from the juridical aspect of the servant’s implied contractual assumption of the risk, or of his contributory negligence. Upon the extension of the rule to the case of a servant, who, although he has Jjeen possessed of actual knowledge of the dangerous condition brought about by his master’s negligence, is for the time being deprived of the power to exercise that actual knowledge by reason of obliviousness, or by incapacity to appreciate the danger, or by
In our judgment the state of the servant’s knowledge should be ■considered as of the moment of the injury. We can not know a thing until our mind is capable of grasping it, and we no longer know it when our mind is incapable of retaining it. The knowledge on the part of the servant which precludes his recovery may be actual or constructive. If he knows of the danger, or if in ihe due exercise of his duty toward his master he ought to know it, "the rule is the same. If on account of youthfulness or mental weakness the servant’s mind is incapable of grasping the knowledge •of the danger, though it be before his very eyes, the courts, with unanimity, hold that he has not assumed the risk; for the law will not put upon the young or weak mind the burden of grasping that which it can not grasp. It therefore seems reasonable to us to say that the law does not put upon'any man’s mind the burden •of retaining that which it can not retain! If the failure to retain is through inattention to duty the servant is at fault, but if it is the result of attention to.duty, of doing what he ought to do, the servant is not at fault. It is not more unreasonable to imply a constructive lack of knowledge in favor of the servant when attention to duty brings forgetfulness than it is to imply a constructive knowledge against him when attention to duty would bring such knowledge. Ordinarily an implied assumption runs with the servant’s contract of employment, that he will obtain and retain knowledge of the risks incident to the employment, and that he will use that knowledge for the purpose of protecting himself. It is fair that a negligent failure on his part either to obtain, to retain, or to use such knowledge should prevent his calling upon the master for indemnity for an injury resulting from his own breach of his contract of employment as to these very things. On the other
Moreover, the position we are now asserting is not without an abundance of able authority to support it. In addition to the Georgia cases of Savannah Ry. Co. v. Day, and Stirk v. Central R. Co., supra, we cite: Kane v. Northern Central Ry. Co., 128 U. S. 91 (holding that it was for the jury, where the brakeman’s necessary haste in getting to the - brakes caused him to forget a known defect in a car); McGovern v. Oil Co., 11 App. Div. (N. Y.) 588 (sustaining verdict where brakeman was injured by an overhead beam of which he had knowledge, his attention being distracted by cries of a person near by); Wallace v. Railroad Co., 138 N. Y. 302 (holding that a brakeman on top of a moving train is not, as a matter of law, chargeable with negligence simply because he does not continually bear in mind the precise location of the train relatively to a bridge over the track); Chicago etc. Ry. Co. v. Goebel, 20 Ill. App. 162; s. c. affirmed, 119 Ill. 515 (holding that laborers have the right to become so engrossed in their labor as to become oblivious to the approach of trains, and that such forgetfulness will not preclude recovery); Harker v. Burlington etc. Ry. Co., 88 Iowa, 409 (quoting from 1 Shear. & Fed. Neg. §213: “The mere technical fact of the servant’s knowledge
We are content to close this discussion by- adopting the views expressed in the same valuable treatise to which we have already referred so often in this opinion, Labatfis Master & Servant (p. 166), as follows: “A correct view of the situation, it is submitted, can not be arrivéd at, unless we wholly eliminate from the question the element of a freedom of will which has no existence, except in the imagination of a certain school of economists, and resort to first principles, for the purpose of ascertaining what standard of diligence is demanded from the employer by those large considerations of public policy, upon which, in the last analysis, the whole law.of negligence may be said to rest. If we view the subject from this standpoint, all the difficulties of the subject will vanish. All that is necessary is to construe, in a manner appropriate to the relations of the parties to the contract of service, the principle that no person has a right to keep his property in such a condition that persons who, with his consent, are brought into close relations with it, will be likely to receive injury, even though they may exer
It may be proper for us to distinguish this case from the cases of Blackstone v. Cen. Ry. Co., 112 Ga. 762; East Tenn. Ry. Co. v. Head, 92 Ga. 723; and Price v. Cen. Ry. Co., 124 Ga. 899. In none of these cases was the decision upon this precise point. In the case of Blaclcstone, who was hurt by being struck by a pole located too near the track, it was shown that he was yardmaster, and not only under the duty of knowing the location of the pole,
We have not overlooked the contention of the defendant that the evidence as to the fact that the tracks belonged to the Western & Atlantic Eailroad Company and were leased by the Seaboard Air-Line Eailway is hearsajr, and therefore of no probative value. An inspection of the evidence set out in the record does not sustain this contention. That there was a lease of the tracks by the latter company from the former appears to be sustained only by hearsay, but the proof was direct that the tracks belonged to the Western & Atlantic Company and that the Seaboard Company was using them for the operation of trains. This alone is material, the exact nature of the agreement by which the use came about is not so.
Judgment, on the main bill of exceptions, reversedj on the cross-bill, affirmed.