27 Ga. App. 238 | Ga. Ct. App. | 1921
(After stating the foregoing facts.) There being no statutory presumption in aid of the plaintiff’s ease, the burden was upon her of proving the negligence of the- master in respect to the matters of negligence alleged in her petition; and the allegations of the petition should be sufficient to show that the defendant was guilty of negligence if the facts were proved as alleged, and also sufficient to exclude any reasonable hypothesis that his death was caused by reason of accident, his own negligence, or by one of the risks which he had assumed under his contract of employment. Carroll v. Atlanta Paper Co., 7 Ga. App. 584 (67 S. E. 680). It is insisted that the allegations of the petition did not measure up to this standard. First, it is said that there is no allegation in the petition as to how the employee came to his death, and several hypotheses entirely consistent with defendant’s innocence are pointed out, either one of which may have been the cause of the injury. It is expressly alleged that the decedent came to his death by receiving a shock from a heavily charged electric-wire which he was working on at the time. How he came in contact with it is not alleged. While the general rule as to the burden of proof of negligence applies to actions against electric companies for personal injuries, yet such actions offer an opportunity for the application of the well-established doctrine of res ipsa loquitur. It is certainly inferable from the fact that the death
Among the acts of negligent omission charged against the defendant in the present case is its failure to perform its duty of giving to its employee a safe place in which to perform his work, and in this connection it is also alleged that there was a custom of the defendant company to cut oil the current of electricity from its wires when its employees were engaged actually in working on them. It is not specifically alleged that the plaintiff, in going up on the pole for the purpose of repairing the wire, relied upon this custom, but the only significant inference from the allegation of the existence of the custom is the one that he did rely upon the custom. The inference is greatly strengthened by the additional allegation that, before going up to do the work, he was assured by the superintendent who had charge of the work that it was safe for him to do the work “then and there,” and while there is no specific allegation that the decedent relied upon this statement and assurance of the superintendent, yet this is also the only fair, reasonable inference, from the allegation that the statement or assurance was given. If it was the custom of the company to cut off the current when its linemen were actually engaged in working on the wires, the custom must have been known to the lineman, and he must have relied upon the custom
Another allegation of negligence set out in the petition "is that it was the duty of the company to furnish the employee with a safe place in which to perform his work, and that this duty was not performed if, with knowledge that the employee was working on the wires at the place of contact with the pole, the current was still on with dangerous force, that it should have been cut off irrespective of any custom, in the discharge of ordinary care imposed upon the defendant for the protection of the lineman. Whether this duty of cutting off the current was on the defendant is a matter to be determined by the evidence. It cannot be determined as a matter of law. Of course if the defendant could not cut off the current without detriment to its entire service, it would not be called upon to do so, but if the current could have been cut off without detriment to its service, it was a question to be determined by the jury, under the facts of the case, whether it should have been done as a means of protection. In the case of Paducah Ry. & Light Co. v. Bell’s Admr., 27 Ky. Law Rep. 428 (85 S. W. 216), it was held, in a case where the lineman was shocked from 'contact with a defectively insulated wire, that “ the employer was liable upon the ground that he had failed to furnish the employee with a safe place in which to work.” No allegation appears in the petition as to the failure to have the wires insulated properly as being a negligent act on the part of the defendant, the definite allegation being that the company was negligent in sending the decedent to work on top of the electric pole on electric wires heavily charged with a high voltage of electricity, without first cutting off the current of electricity in the wires. AYithout undertaking to hold, as a matter of law, that it is the duty of the electric company, in the exercise of ordinary care, to cut off the current while its employees are actually at work on the wires in the absence of complete insulation, if, as a matter of fact, such a custom existed, it was a recognition by the company that such an act was necessary .as a protective measure; and we lay down the proposition, which we think indisputable, that those who employ in their business the most dangerous, subtle, and powerful force known to human agency are bound to exercise such means to prevent injury to their
It is insisted by learned counsel for the defendant in error that the risk of coming in contact with the live wire wás one of the risks assumed by the employee. It is well settled in the doctrine of the law of master and servant that one who undertakes hazardous employment assumes the risks ordinarily incident thereto; and this modifies the master’s obligation to provide his servant with a safe place to work when the latter contracts to serve under conditions he knows to be dangerous. This is the rule laid down by our Civil Code (1910), § 3131. What risks are deemed ordinary are usually questions of fact to be determined in the particular case. As a general proposition it may be stated that every risk which is not caused by a negligent act or omission on the master’s part is assumed by the servant. 3 Labatt’s Master & Servant, (2d ed.), 3110. “A servant by entering into his master’s service assumed all the risks of that service which the master cannot control.” Gilman v. Eastern R. Corp., 10 Allen, 233 (81 Am. D. 635); Caldwell v. Brown, 53 Pa. 453. “ Ordinary risks are such as remain after the employer has used all reasonable means to prevent them.” Seley v. So. Pac. Co., 6 Utah, 319 (23 Pac. 151). “The risks which the servant assumes are necessary risks, such as attach or belong to the work, and which even the ordinary care of the master cannot provide against.’” Halliburton v. Wabash R. Co., 58 Mo. App. 21. It follows from these decisions, which we think are sound, that if the danger to the lineman engaged in his work in the present case was one which the master-could have prevented by the exercise of ordinary care, it was not a risk which the employee assumed. And especially would this apply in the present case, in view of the allegation of the custom of the company as to cutting off the current and the assurance of the superintendent that the place was one in which it was safe to work; and in our opinion this question should have been referred to the decision of a jury, and could not have been properly determined as a question of law. In order, therefore, to allow the plaintiff an opportunity to prove her allegations on the questions treated in this opinion, the judgment of the trial court in sustaining the general demurrer and dismissing the petition is reversed. The allegations, of negligence not specifically considered
Judgment reversed.