60 Ga. App. 180 | Ga. Ct. App. | 1939
Florence Reed Register filed suit against S. Simowitz and J. Simowitz, a partnership trading as Marilyn Slipper Shop, alleging, in the petition as amended, that she was employed by the defendants from May, 1936, to August 15, 1937; that on August 15, 1937, they required her to come to work for the purpose of arranging stock and taking inventory in their store in Augusta, Georgia; that the day being Sunday the store was closed, and the day was extremely hot, and due to the store being closed and without ventilation the air in the store became hot and polluted and filled with dust because of the dusting and arranging of said stock of goods; that the defendants were negligent in not providing her a safe place in which to work, the said store being unsafe for the reason that it was shut tight and not ventilated; that it was extremely hot and without fresh air, and the air therein became contaminated and bad; that the defendants were negligent in not having said store properly ventilated so as to provide her a safe place in which to work; and that as a result of the defendants’ negligence and the hot and polluted air caused by their negligence in not having the store properly ventilated, and as a result of their requiring her to work in said store when it was closed, she became ill and fainted and fell, striking her head and suffering certain described injuries for which damages were prayed. The defendants
“If there are latent defects in machinery, or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto.” Code, § 66-301. “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.” § 66-303. “In an action by a servant against a master for alleged failure of' duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it. If the danger be obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.” Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (68 S. E. 483). “In dealing with the doctrine of the assumption of risks by an employee, the difference between ordinary and extraordinary risks must not be overlooked. Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master’s negligence. The expression, ‘extraordinary risks,’ is generally used to describe risks arising from the negligence of the master, and they are generally held not to be assumed unless they are known or obvious.” Emanuel v. Ga. & Fla. Ry. Co., 142 Ga. 543 (83 S. E. 230). “Although an
It is inferable from the petition as amended, properly construed, that the unwholesome condition of the air in the store did not exist when the plaintiff first entered, but that during the process of dusting and arranging the stock the pollution of the air resulted after an unnamed interval. This much is evident from the allegation that the store “became” hot and polluted and filled with dust. It could not be said that from that time she was not aware of the conditions, the physical facts; but the question still remains whether or not she should have also known, in the exercise of ordinary diligence, that such conditions were abnormally danger
We do not think that it could be said, as a matter of law, that under the facts alleged the plaintiff should, upon detecting the hot and polluted condition of the air, have known that by'carrying out the order of her master and remaining at her work she would suffer injury and damage. The petition as amended sets out a cause of action, and presents questions for the determination of a jury. Such questions will not be concluded by the court except in plain and indisputable cases. Connell v. Fisher Body Corporation, 56 Ga. App. 203 (192 S. E. 484), cited and relied on by counsel for plaintiffs in error, is distinguishable on its facts. There the servant performed work at a bench adjacent to which was a circular saw operated by electricity, which “ caused a terrific amount of dust to fill the air in and about” the plaintiff, and he continued to expose himself to the dust-laden air for a long period of time and contracted tuberculosis. To say that the present case is controlled by the Connell case would be to say that it should be held as a matter of law that it would be abnormally dangerous for a healthy person to work one day under the conditions there shown.
It is contended by the plaintiffs in error that by remaining at her post the plaintiff consented to the tort, and that under the Code, § 105-1803, no recovery can be had. The plaintiff was ordered to render services on the day in question, and was made conscious of the fact that the air in 'the store had become hot and polluted by dust, but, as knowledge of a physical condition is not necessarily knowledge of a danger, the act of the plaintiff in obeying the order of the master did not amount to a consent to be injured.
The further contention of plaintiffs in error that the violation of a penal statute, namely, working on the Sabbath day, was the proximate cause of the injury is likewise without merit. The effect of hot and polluted air in a closed store was independent of the fact that the work was being performed on Sunday. Hughes v. Atlanta Steel Co., 136 Ga. 511 (71 S. E. 728, 36 L. R. A. (N. S.) 547, Ann. Cas. 1912C, 394).
Judgment affirmed.