125 Ga. 655 | Ga. | 1906
This action for damages on account of personal injuries was dismissed on demurrer. In his petition the plaintiff alleged that he was hurt by reason of being furnished a defective appliance by the defendant company, with which to unload a car of coal. The appliance was “a heavy iron wrench weighing about twenty-five pounds, and about three and a half feet in length, made with a square hole in one end.” This wrench was brought into use by fitting the square hole over the square end of a shaft, or windlass, through -the movements of which, together with the connected machinery, the cars were unloaded. The defect in the wrench consisted in one of the corners of the square hole being' worn to such an extent that when the plaintiff pulled down on the wrench, the hole, or “eye,” turned on the shaft, instead of holding and controlling it. It appears from the petition that the plaintiff had not used the wrench for several days prior to the time of the injury, but that during that time it had been used by other employees of the defendant without mishap. It was further alleged in the petition that the plaintiff was working under a foreman, and at the time was unloading the car under his direction. The case is here upon complaint of the plaintiff to the sustaining of the defendant’s general demurrer.
It is evident that the plaintiff’s injuries were the result of a failure upon his part to discover the defect in the instrument, which he had not only equal opportunities with the master of discovering, but for the discovery of which his opportunities were superior to those of the master or any of its representatives. On account of the size of the implement, the shape and exact condition of the hole, or “eye,” must have been apparent to -him upon a casual glance. The Civil Code, §2611, makes it the duty of the master to exercise ordinary care “in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery, or 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.” But under
Judgment affirmed.