21 Ga. App. 379 | Ga. Ct. App. | 1917
‘ T. B. Dunn brought suit in the city court of Gray, Jones county, against the Louisville and Nashville Railroad Company and the Atlantic Coast Line Railroad Company, for personal injuries sustained by him. The first verdict in his favor was set aside on certiorari. On the second trial a verdict and judgment for the plaintiff were again rendered, and the defendants filed a petition for certiorari, which the judge of the superior court refused to sanction, and to that judgment the defendants excepted. The undisputed material facts in the case are as follows: Dunn was an employee of the defendant railroad companies, and was a member of a bridge-gang which was repairing a wagon-bridge over the railroad-track. He had had about five years experience on a bridge-gang. A new support, called a “bent,” to this bridge having been erected, the foreman directed the members of his
1. It is clear from the evidence that Dunn was employed for the express purpose of assisting in the répair of an unsafe structure, which was obviously dangerous work. The particular work in which he and his fellow workman were engaged, at the time he was injured, was the cutting down of the rotten batter-posts. This was inherently and necessarily a dangerous occupation, and the undisputed evidence is that Dunn knew this as well as the master did, he himself testifying that “they were taking it [the bent] down because it was so badly decayed and rotten that it was not safe to stay there and support the bridge. . . I knew when they took that bent out it was because it was a rotten bent.” It must be held, therefore, that Dunn assumed the risk incident to such employment; and the rule of law that the master must furnish the servant a reasonably safe place in which to work is not here'applicable. See authorities cited in the 1st headnote.
2, 3. It is strongly contended, however, by the learned counsel for the defendant in error that the railroad companies were negligent in notifying to the bridge superstructure the batter-posts at the top, while they were being cut down, and that this negligence was the cause of the plaintiff’s injuries.. The evidence does .not
It is undisputed that Goldman had commenced to cut down his post before Dunn started to cut on his, and that Dunn had knowledge of this fact, he testifying that “he [Goldman] was chopping on his when I took up the ax and started. . . When I was cutting my post and Mr. Goldman was cutting his, I kinder had my back to him.” It is apparent that the obviously safe way for the plaintiff to have done his work would have been to have waited a few seconds until Goldman had cut down his post, and then to have commenced cutting down the other one. It is shown by the undisputed evidence that it was the. custom to cut down only one batter-post at a time, and never to cut down two at the same time. On this point the plaintiff’s own testimony was: “I knew from my experience in cutting down bridges that the usual thing to do was to cut out one batter-post, then cut out the other batter-post. . . I don’t know that I ever knew in all my experience two men cutting on two batter-posts at the same time. . . ' If I had
4. It is insisted, however, by counsel for the defendant in error, that Dunn was justified in so acting, because he was ordered .to do so by his superior, the foreman of the bridge-gang. The evidence does not show that the foreman ordered Dunn to begin cutting down his post before Goldman finished cutting down the other one; but conceding, for the sake of the argument, that there was a sufficient legal inference from the evidence to authorize the jury, to find that he did, still, under another well-known principle of law applicable to the facts of this case, the plaintiff was not entitled to recover. Where an order of a master to a servant is negligent, and the servant knows of the peril of complying with it, or if he has equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known of it, then he can not recover for an injury received in consequence of complying with the order. See authorities cited in the 4th headnote.
5. Under the facts of the ease the defendants were not liable for failing to warn the plaintiff of the danger in cutting down the post, such danger being obvious and as easily known to the servant as to the master. See authorities cited in the 5th headnote.
There was no evidence to support the allegations in the petition that it was the custom and rule of the defendants on such an occasi.on to give due warning to all employees standing near by, in time for them to escape any injury from the falling of the posts, and that the plaintiff relied upon such warning.
■The evidence, both for the plaintiff and for the defendants, clearly showed. that, even if the defendants were guilty of negligence in .failing to tie the batter-posts at the top, and in negligently ordering the plaintiff to cut down one of the batter-posts while the other batter-post was being felled, the plaintiff, by the exercise of ordinary care on his part, could have avoided the consequences to himself caused by the defendants’ negligence; and there was no evidence to authorize a contrary finding. It follows that the plaintiff was not entitled to recover in this case, and that the verdict in his favor was unauthorized. The court therefore erred in refusing to sanction the cetriorari sued out by -the defendants. This ruling being controlling in the ease, it is unnecessary to consider the other assignments of error in the petition forcertiorari..
Judgment reversed.