86 Ga. 418 | Ga. | 1890
The plaintiff’, while in the employment of the defendant, and in the discharge of his duty in the lower hold of a ship, was injured by a falling bale of cotton. He alleged in his declaration, that he was hurt beeause the hooks by which the cotton was lowered from the ■upper part of the ship, were, by the negligence and default of the defendant, unsafely constructed, in disrepair, unfit for use, of defective and improper material, in an unsafe condition and unfit for the purpose for which they were being used, being so defective as not to securely hold the cotton, on account of their generally defective condition, and particularly because the points of the hooks, being worn smooth and having been forced from an acute to an obtuse angle, failed to securely catch and hold the cotton. He alleged that the defendant knew or ought to have known this ; and that he himself did not know, and was injured without fault on his part.
The jury found in favor of the plaintiff a verdict for $1,000. The court overruled a motion for a new trial by the defendant based upon the grounds (1, 2) that the verdict was contrary to law and .the evidence and ex
It is a well-established proposition that if the defect was one which the master should have known, he will be presumed to have known it. If he should have known, he was negligent in not knowing; and negligent ignorance is equivalent to knowledge. (Schmidt v. Block, 76 Ga. 823; and authorities cited infra.) "When the plaintiff has shown that the master ought to have known, the law does not put upon him the additional burden of proving that the master knew what it was his duty to know. On this subject counsel for the plaintiff in error cited the case of McMillan v. Railroad Co., 20 Barb. 450 ; but as to that case and others on the same line it is said (2 Thomp. Neg. 994, n.): “Some courts have held that actual notice is necessary, ignoring the fact that negligent ignorance is, for this purpose, equivalent to notice. .. But the rule as thus stated is so obviously unsound as not to require discussion. Moreover, the highest court in the State where these rulings occur has held otherwise.” “ Ignorance on the part of the employer will be negligence in a case in which any proper inquiry would have obtained the necessary information, and where the duty to inquire was plainly imperative.” Id. 996.
It is also clear that the defect might of itself indicate that the master should have known of it. Its patent and obvious character, and the apparent age of the defect, may indicate this. The master, being under the duty not only to furnish safe and suitable implements to his employees but to keep them in that condition, is bound to know the condition of his property so far as proper inspection will enable him to know it; and where it is proved that there was a defect, and that
The remaining authorities cited on this subject for the plaintifi in error are also distinguishable from the case at bar. In Humphreys v. Railroad Co. (W. Va.), 10 S. E. Rep. 39, the court says, it did not appear that the defect was such as inspection would have detected; and besides the plaintiff knew of it and was the only one that- knew, so far as appeared from the evidence. In Mobile, etc. Railroad Co. v. Thomas, 42 Ala. 672, the court says: “ It might be that in the use of the engine the unsafeness had never been developed.” In Columbus, etc. Railroad Co. v. Troesch, 68 Ill. 545, 18 Am. Rep. 578, it did not appear that the engine was obviously unsafe or defective; indeed the court held that the plaintiff failed to prove that there was a defect which could have been known by the exercise of diligence. Besides, that case as far as it goes is in accord with the charge complained of in the present ease, for it holds in efteet that- in order to charge the master with notice of the defect, it is enough to show that in the exercise of diligence he ought to have known of it. And it is not held, either in that case or the others cited, that the defect may not of itself be sufficient to show that the master ought to have known, and thus raise the presumption that he did know.
Of the abundant authority which could he cited to sustain what has here been said, the following will suffice:
In Shearman and Redfield on Negligence, §223, it is said : “ It is enough to prove that the materials were defective in such respect that if a proper inspection had been maintained, the defects would probably have been ascertained in time to have prevented the injury.” See also Id. §194.
In Wedgwood v. Railroad Co., 44 Wisc. 44, it was held that the defect being an obvious one, the refusal of the court' to charge that knowledge of the defect by the master must he proved was not error. It was said that if the defect “ was of such a character that the defendant by the exercise of ordinary care could have discovered and repaired it, it was liable for an injury sustained by an employee in consequence of such defect.”
In a recent Massachusetts case (Griffin v. Railroad Co., 1 Annot. Lawy. Rep. 698), the court held that the spreading of a coupling-link which injured an employee was prima fade evidence of negligence, and cast upon the master the burden of explanation. It was said: “ If the link was not sound and suitable for use, the fact of its being used in that condition properly calls for explanation from the defendant; and if under such circumstances the defendant fails to put in any evidence, some inference against it may be drawn therefrom. The fact may be susceptible of an explanation sufficient to exonerate the defendant, but in the absence of such explanation we think the jury might properly infer negligence on the part of the defendant.” We cite this last case, not that we fully approve it, but to show how far one of the ablest courts in the Union has gone upon the subject. See also Cowles v. Railroad, 84 N. C. 309, distinguished from case of latent defect in Hudson v. Railroad Co., by the same court, 10 S. E. Rep. 675 ; also Smith v. Railroad, 18 Fed. Rep. 304.
It being shown, therefore, by the plaintiff in this case, that he did not know of the defective condition of
The most that is complained of as to this charge is that it did not require the plaintiff to prove enough. It is certain, however, from the evidence, that whatever was charged, he did prove enough. So upon the whole the verdict should stand. Judgment affirmed.