19 Ga. App. 201 | Ga. Ct. App. | 1917
This case was before this court at the March term, 1915; and the character of the action is sufficiently shown and the material facts of the case clearly stated in the opinion then delivered by Judge Broyles. 16 Ga. App. 686 (85 S. E. 978). It is proper to add that the plaintiff predicated her action upon the theory that although her son, for the value of whose life she sued, believed that the scaffold in question was not substantial enough to carry the weight of the top of the creosote tank, the deceased and a fellow servant suggested this fact to Stanley, the defendant’s vice-principal, who answered that he had built more towers and tanks than these servants ever saw, and knew more about it than
1. The rejection of certain evidence is complained of in grounds 1, 2, 3, and 4 of the amendment to the motion for a new trial, but these exceptions are not of sufficient merit to require especial notice, and particularly since the rejected evidence.was in substance admitted by the court, as will appear from a close reading of the brief of the evidence.
2. In ground 5 it is complained that the court refused, on cross-examination of the vice-principal of the defendant, to allow the following question: “When you rebuilt this scaffold, didn’t you rebuild it with braces to the outside scaffold, with uprights down the middle, on the side, and with an upright in the middle of the scaffold to support the cone of the roof?” It is insisted that this question, to which an affirmative answer was expected, should have been allowed on cross-examination and in rebuttal of one of the' contentions made by the defendant in error, to wit, that the scaffold was equal to those in general use and was reasonably safe. We think that this evidence was properly rejected, and that the same considerations of public policy stated by the Supreme Court of this State in the ease of Georgia Southern & Florida Ry. Co. v. Cartledge, 116 Ga. 164 (42 S. E. 405, 51 L. R. A. 118), apply with equal force whether such evidence be offered in chief, or in rebuttal of one of the contentions made by the defendant in the trial of the case. Central Ry. Co. v. Price, 121 Ga. 651, 658 (49 S. E. 683).
3. In grounds numbered 6 to 19, inclusive, exceptions are taken to instructions to the jury. Many of these exceptions go merely to the form of expression used by the court, and are of no moment. Certain of the instructions do go to the very substance of the plaintiff’s case. In ground 17 complaint is made of the following charge: “If you believe this scaffold was negligently built, and you also believe Mitchell was ordered to go in and upon this scaffold to work, with assurance from Stanley that it was safe, and such assurance on the part of Stanley was a negligent assurance or order or invitation to do the work, still if you believe that
How does the statement embraced in the excerpt quoted from the charge stand upon authority? In Bush v. West Yellow Pine Co., 2 Ga. App. 295 (58 S. E. 529), it was held: “.Mhile ordinarily the law reads into contracts of employment an agreement
In a case of this character the master may plead, (1) that the servant assumed the risk incident to the work, and (2) that he was guilty of negligence in continuing in the work, and that this negligence either partially or entirely caused his injury. These defenses are distinct, although in actual practice they often merge. While the servant ordinarily assumes the risk incident to his employment, yet, if the servant complains of. a defect in the place or appliance, and is expressly assured by the master that the place or appliance is safe, the servant can not be held as matter of law to have assumed the risk incident to the work, but it then becomes a question whether he has brought about, by his own negligence, the injury of which he complains. It is clear that, where he knows of the defect in the place, and complains of it to the master, and is by the master assured that the place is safe, and relies on such assurance, his contributory negligence in remaining in the work will defeat his action only when ordinary minds would not differ in saying that his act in remaining was so obviously dangerous that no prudent man would continue in the work. In the
Since the excerpt from the charge of the court, herein considered, was nowhere in the charge expressly withdrawn, limited, or modified, a new trial must be granted the plaintiff. We are loath to disturb this, the second, verdict for the1 defendant, but the plaintiff is entitled to have her case'submitted to the jury with proper and correct instructions on the law; and until this has been done, it is the duty of this court to interfere in her behalf. The learned trial judge, who at the time of his death was a member of this court, with the commendable frankness apparent throughout his judicial career, impressed upon the jury the controlling principles of the law applicable to this case, as he understood them. We simply differ, with all due deference to the views of our departed brother, in the application of the substantive principles of law to the facts in this case.
3. The plaintiff excepts to the refusal of the court to give in charge certain requests applying in effect the rule of res ipsa
The judgment overruling the motion for a new trial is
Reversed.