48 Ga. App. 214 | Ga. Ct. App. | 1934
P. D. Padgett brought suit against the South
The court sustained a general demurrer to the petition, and to this ruling the plaintiff excepted.
We have carefully considered the decisions applicable to the facts of this case, and agree with the insistence of counsel for defendants in error, that an employee assumes the usual and ordinary risks of his employment; that he is bound to take notice of the ordinary and familiar laws of nature applicable to the subject to which his employment relates; that he is bound to take notice of the weight and the strength required to lift an ordinary object; that his mere misconception of the weight of an ordinary object, or of the strength required to lift it, does not render the master liable; that the fact that he acts under orders of a superior in lifting an object obviously too heavy for him does not render the master liable, and that he is bound to exercise ordinary care to protect himself. However, construing the allegations of the instant petition which are supported by the pleaded facts as true (which we must do in testing it as against a general demurrer), we think the petition sets out a cause of action. In other words, if the plaintiff should prove all that he has alleged in his petition, a nonsuit could not properly be granted. The plaintiff was a stranger to the work and the injury occurred the first day that he was assigned to it. The object to be lifted was not an ordinary object, such as a piece of iron, but the stage and the manner of lifting it were such that it was a question for the jury whether the plaintiff, as a man of average intelligence who was not familiar with the method of its operation, could ascertain the amount of strength required to hoist it. The plaintiff did not merely misconceive his strength, but there was an actual misrepresentation by the master both as to the weight of the stage and also as to its getting lighter the higher it went, which misrepresentations misled the plaintiff and were responsible, or at least partly so, for his misconception of the weight of the object and the strength necessary to operate the hoisting machine. By reason of the misrepresentations the plaintiff undertook the task, but when he got to the third floor of the building he found that he did not have sufficient strength for the work, and he then informed the foreman that he was under a great strain, “and asked that he be relieved therefrom,” but the foreman “ commanded petitioner to work on, and advised
Under all the facts of the instant case, it was for the jury to determine whether the alleged misrepresentations and commands of the master were negligent, and whether, under the master’s assurance of safety, the plaintiff in continuing the work was exercising ordinary care for his own protection. It follows that the court erred in dismissing the petition on general demurrer.
Judgment reversed.