122 Ga. 602 | Ga. | 1905
It.is to be observed that the petition nowhere alleges that the defendant had actual knowledge of the defective condition of the cross-arm, but alleges simply that by reason of the facts set out it ought to have known of it, and was negligent in not discovering its defective condition. The allegation that the ■defendant knew or ought to have known will be construed most .strongly against the plaintiff, to mean simply that it was the •defendant’s duty to know. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (6). An averment that the defendant had been notified of the defective condition of the poles and cross-arms in the town where the plaintiff was employed to work is not equivalent to an •allegation that it knew of the defect in the particular cross-arm which caused the injury. We have no difficulty in reaching the •conclusion that the court erred in overruling the general demurrer. The code provides that in suits by a servant against a master' for injuries received from the use of defective machinery, “it must appear that the servant injured did not know and had not -equal means of knowing such fact, and by the dxereise of ordinary care could not have known thereof.” Civil Code, § 2612. The .code also provides that “if there are latent defects in ma-chinery, or dangers incident to an employment, unknown to the servant, of which the master knows, or ought to know, he must give the servant warning in respect thereto.” Civil Code, § 2611. The plaintiff evidently seeks by his allegations to bring himself within this 'rule. But, as before observed, he does not allege that the defendant had actual knowledge of the defective condition of the cross-arm. If this had been alleged, the defect being a latent ■one, it would clearly have been the duty of the master to give the servant warning. In its last analysis, the'petition simply means ■that on account of. the long time that this defect had existed, and on account of the further fact that the defendant had been warned of the defective condition of its poles, cross-arms, etc., in the town in which the plaintiff was hurt, it ought to have discovered this particular defect. . But the plaintiff distinctly alleged that the defect was concealed by paint, and that he did not go upon the cross-arm until after “carefully examining and testing” it, such examination and test failing to result in a discovery of the defect. Under the allegations of the petition the defect was one which could not be discovered by a “ careful examination and
Judgment reversed.