Sims v. East & West Railroad

84 Ga. 152 | Ga. | 1889

Bleckley, Chief Justice.

The grounds of liability set out in the declaration are the failure of the company to warn Sims of the danger of the work assigned to him, and the omission to give him needful and proper instructions by which to perform it safely. But there is no evidence that the work was in any respect more hazardous than that of ordinary labor, or that, if it was, he did not know how to do it safely. He was a witness, but said not a word goingto show either that he was ignorant of any danger attending tho work, or that he dicl not know how to perform it properly. Several other witnesses testified, among them his father, none of whom said that the work was dangerous or that Sims was too young or too ignorant to understand how it should be done. There is no evidence that he was lacking in common sense or in the ordinary capacity of a youth of seventeen years of age. The labor which he undertook was not one requiring the skill of an expert or the experience of a practiced hand or eye. It was such work as any common laborer of his age is capable of doing, just as much so as to plow or chop. It is manifest that the injury did not result from the hazardous nature of the work, but either from the failure of Sims,to execute it with due care, or from some defect.in the car ; and if it resulted from either of these causes, there could be no recovery in the present action. For if it was his own carelessness in doing oi’dinary work suitable to his age that brought the calamity upon him, he must take the consequeuces ; and if it was the defective condition of the car, that is not embraced in the declaration. To recover because a bad car was furnished upon which to do the work, would be to recover for negligence in the company not, alleged. The cause of action as set forth in the declaration not being proved, and there being no evidence from which the jury could infer by any process of right reasoning that it was proved, the court did not err in granting a non-suit.

The question that the work was not, in its nature, attended with any extraordinary hazard or danger, was settled when this case was here before. E. & W. R. R. Co. v. Sims, 80 Ga. 807. The evidence on that question was substantially the same then as now. The two head-notes prefixed to this opinion sum up the result.

Judgment affirmed.