18 Ga. App. 187 | Ga. Ct. App. | 1916
1. The ruling stated in the first headnote is considered too well settled by'the authorities to require elaboration. In addition to the. authorities cited in the headnote, the case of Seaboard Air Line Ry. v. Horton, 233 H. S. 492 (34 Sup. Ct. 639, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475), as we see it, is a holding that the doctrine of assumed risk is applicable in any case of injury to a railroad employee except in those cases specifically covered by the act of Congress, and impliedly excludes the idea that there is an abrogation of the doctrine of the assumption of the risk in case of am injury to an employee resulting solely from the construction of railroad-tracks too close to each other in a switch-yard. However, even were we in error as to this, the previous ruling of this court has fixed the law of this case. Southern Bell Tel. Co. v. Glawson, 140 Ga. 507, 508 (79 S. E. 136).
2. A review of the record shows that even if a jury' could construe the testimony as to the condition pf the tracks as proof that they were in a defective condition, and that, due to a failure to repair them, they were out of alignment, still knowledge of these defects must be imputed to the plaintiff, since there was no evidence that there had been any recent change in the tracks or their condition, and therefore it must be presumed that the tracks were in the same condition in which they had been ever since he had been at work. Consequently he .must be held to have assumed all the risks which were due to these patent defects. In our previous ruling we did not lose sight of the well-settled principle that the employee assumes the ordinary risk of his employment, and that certainly he is not to.be relieved from dangers which are discoverable by the most casual observation.
3. When this case was here before we were of the opinion, as
Since the evidence for the 'plaintiff was in any view insufficient to sustain any of his contentions which this court had adjudged might be submitted to a jury, the trial judge did not err in awarding a nonsuit. Judgment affirmed.