12 Ga. App. 463 | Ga. Ct. App. | 1913
Lead Opinion
The plaintiff, an employee of the defendant, was directed by its general manager to “clip cables” at a point on the company’s telephone line in the city of Macon. His work was that of a regular lineman, but he was an employee of inferior grade to a lineman, and receiving less pay. In order to perform the work it was necessary for him to use a swinging device consisting of a safety belt, with two hooks on the end, which were fastened over the wire, and a board seat at the bottom of the straps, upon which the workman sat while clipping the cable. When directed to do the work, the plaintiff asked the manager for a “helper” to pull the wires down with a rope, which was the usual way of protecting a workman engaged in clipping cable. The general manager stated that he had no helper to send, that there was nothing to hurt the plaintiff, and that the work was perfectly safe. Thereupon he began the work. He slided along the telephone wire by catching hold of it, lifting his weight from the seat of the swing and pulling himself along with his hands, which was the usual and ordinary way of moving along the wire. Suspended along the poles of the telephone company, and from five to seven inches below his feet, where he was put to work, was a wire of an electric-light company. This wire carried a highly charged current of electricity, and the insulation upon the wire was badly worn, so much so that it hung down in shreds, which could be easily seen from the top of a house some distance above the wire. The plaintiff was not warned by the defendant that the wire carried such a highly charged current, but he did know that if he touched the wire he would get a shock. When he went to work for the defendant he acknowledged receipt of a written notice to inspect all poles before using them, that it was extra-hazardous to work around wires carrying a high current of electricity, and that employees, when doing such work, should use rubber gloves and rubber coats. Many employees, with the knowledge of the company, did not use rubber gloves and coats, and the defendant knew that the plaintiff did not have any. The swing which the plaintiff was using was strapped as closely to the wires as it could be gotten when used for sliding along so as to clip the cables: The plaintiff was not a lineman, and it was not his duty to inspect the wires. He had been clipping the cables, in the manner above indicated, for more than a day prior to his injury, but the farther
Rehearing
ON REHEARING.
The court, on motion of counsel for the plaintiff in error, granted a rehearing, the motion being based upon the ground that in announcing the ruling set forth in the third headnote and the third division of the opinion, the court had overlooked a material part of the record. In the original argument before this court and in the original brief of counsel for the plaintiff .in error, its contention in reference to this point was based solely upon the ground that, in the absence of special demurrer, the original answer of the defendant was sufficient. In the argument, upon the rehearing, attention was called to the fact that the answer of the defendant had been amended. Paragraph 19 of the petition was as follows: “That on account of said injuries your petitioner has lost over two months from his work, and at the time he was injured he was earning $1.50 per day.” This paragraph was amended by adding an averment that at the time of the injury the plaintiff was married, and, while not 21 years of age, he had been manumitted by his parents. Thereupon the defendant filed an amendment to its answer as follows: “It denies each and all the allegations contained
But without reference to this, we have, on further reflection, reached the conclusion that the evidence was sufficient to authorize the instructions complained of. On this subject the plaintiff testified: “I was clipping the cable as a lineman at the time I was injured. I was not getting the pay of a. lineman. . Their pay was $2.75 and $2.80 per day.” Montgomery, one of the witnesses in the ease, testified as follows: “The plaintiff had been a helper for most of the time, but he had learned to climb as a lineman. The plaintiff was getting twenty-five cents a day more than a regular helper.” While there was.nothing, in the evidence, to show what was the pay of a helper, so as to fix with certainty the wages of .the plaintiff, it does appear that a helper was receiving some compensation, and that the plaintiff’s wages were twenty-five 'cents per day in excess of a helper’s pay. So that there is affirmative