52 Ga. App. 360 | Ga. Ct. App. | 1936
R. L. Cowan brought suit against the Southern Railway Company for damages on account of alleged negligence in furnishing to him an unsafe and unfit tool with which to do his work. The case was based on the Federal employer’s liability act. The defendant demurred generally and specially to the petition, and to the overruling of the demurrer the defendant excepted pendente lite. The defendant set up that the plaintiff assumed the risk of his employment and that he was guilty of contributory negligence. The trial resulted in a verdict for the plaintiff for $5000. The defendant’s motion for new trial was overruled, and it excepted.
1. Cowan was foreman of a section-gang employed by the defendant, a railway company engaged in interstate commerce, in the repair, upkeep, and maintenance of a portion of its road-bed and tracks. On the occasion of the injury Cowan was engaged in wielding a steel hammer or spike-maul, by striking the end of a claw-bar for the purpose of driving it under a spike embedded in a crosstie in order to remove the spike from the tie, when a fragment of the head of the hammer or maul slivered or chipped off its face and struck Cowan in the eye, causing him to lose it. He contended that the hammer was a tool furnished to him by the
In a case brought under the Federal employer’s liability law the mere happening of the accident will not warrant a recovery. There is no presumption of negligence against the railroad company or any of its servants, arising from proof only of injury to one of its employees. The act states that the railroad is liable when the injury is due to negligence of any of its officers, agents or servants, or where the injury is the result of the negligence of the company in furnishing tools, appliances, etc. L. & N. R. Co. v. Kemp, supra; Williams v. W. & A. R. Co., 20 Ga. App. 726, 729 (93 S. E. 555); Landrum v. W. & A. R. Co., 146 Ga. 88 (90 S. E. 710); Southern Ry. Co. v. Blackwell, 20 Ga. App. 630 (93 S. E. 321); San Antonio &c. R. Co. v. Wagner, 241 U. S. 476 (36 Sup. Ct. 626, 60 L. ed. 1110). Ordinary diligence requires the company to furnish its servant tools reasonably suited for the uses intended. Williams v. Alabama Great Southern R. Co., 15 Ga. App. 652 (84 S. E. 149). This Federal law does not give a new cause of action which did not exist at common law, but modi-.
The defendant in this case contends that the tool furnished to the plaintiff employee was a simple.tool, and that it was not its duty to inspect it. Counsel state that in the case of simple tools, where a master has performed his initial duty of using ordinary care to furnish his servant with a safe tool, the master may rely on the servant to discover and warn him of defects. Swaim v. Chicago &c. Ry. Co., 187 Iowa, 466 (174 N. W. 384). The defendant contends that the principle that it is not the duty of the master to inspect simple tools, where the defect is necessarily
However, we have in this case an action predicated on the negligence of the master in furnishing an unsafe tool, due to the fact that it took a simple tool, a steel maul, and had it repaired, and, in so repairing it, either improperly tempered it or left it without temper, and thereby made it unsafe and unfitted to be used as a hammer; that the master failed to use ordinary care in so doing; that the servant had no knowledge of this condition of the hammer, and the defect was such as was not obvious; but that the master was chargeable with knowledge of its unsafe condition, in that it repaired or reconditioned the hammer or spike-maul, and was guilty of negligence in this respect. We have then a case based on negligence on the part of the master, with knowledge, actual or constructive, on its part of the defect in the tool, and of a servant that did not know of the defective condition and could not discover it by ordinary or casual observation. It has been held that where a railroad company furnished its servant with a steel spike-maul, it could not escape liability for injury received by the servant from the slivering of the maul, on the ground that it was under no duty of inspection to determine whether the maul was properly tempered; for that fact could not be readily determined by the servant, but might be determined by the master by a simple test. In such a case the question whether the company was negligent in furnishing a defective maul was held properly for the jury. The court held in that case that where the company was negligent in furnishing its servant an unsafe tool, there was no assumption of risk by the servant of injuries from the use of such tool. Crader v. St. Louis &c. R. Co., 185 Mo. App. 526 (164 S. W. 678). In Gately v. St. Louis &c. R. Co., 332 Mo. 1 (56 S. W. (2d) 54), it was held that whether the servant assumed the risk of the defective condition of a steel lever bar, a simple tool, was a question for the jury under the Federal employer’s liability
In Chicago &c. Ry. Co. v. Payne, 141 Ark. 617 (217 S. W. 810), it was held that a case was made for the jury, where the servant was injured by a defective iron maul, where the defect could not be discovered without taking the maul off the handle, there being no affirmative duty on the servant to inspect a tool to discover defects not so obvious as to be naturally observable; and that where a master negligently furnishes a tool that is unsafe, the servant does not assume the risk, unless the defect is so open that any man of ordinary prudence would discover it on casual observation. In Hines v. Flinn, supra, it was held that if there was nothing to indicate to an injured section foreman that the temper of a maul had been changed since it was furnished to him, or that he knew the dangerous .condition in which it was because not properly tempered, he was under no duty to send it to the blacksmith-shop to be properly tempered, according to the rules of his employer; that the duty of furnishing a safe maul for use in his work by its section foreman is a non-delegable duty of a railroad company, of which it can not relieve itself by charging the foreman with its performance; that the maul being a simple tool would not prevent the company from being required to use ordinary care to furnish the foreman with a reasonably safe tool to work with; that where such foreman was holding a chisel and
2. The court did not err in refusing a request to charge the jury as follows: “I charge you . . that under the employer’s liability act of Congress a railroad company is not chargeable with negligence by proof of mere defect in the appliance, but actual or constructive notice of such defect must be shown by the plaintiff. I charge you., therefore, that even if you should find from the evidence that there was a defect in the hammer, but that the defendant had no notice thereof, either actual or constructive, the plaintiff would not be entitled to recover.” Before a new trial will be granted for refusal to give in charge a requested instruction, it must not only embody a correct and accurate statement of the law but must be applicable to the issues raised by the pleadings and the evidence. The issue here was negligence. If the defendant was negligent in furnishing the hammer to the plaintiff, in that the defendant had reconditioned it and had left it without temper or had failed properly to temper it, then the plaintiff would not assume the risk of using it in the manner and for the purpose intended, where the defect was not so obvious as to be naturally observable without an inspection.. The defendant would be negligent if it furnished to the plaintiff an unsafe and unfit tool with which to work, even though the tool was a simple one, if it knew of the defect therein, and if the employee did not know thereof, and the defect was not plainly obvious; and if the defendant took this hammeT and reconditioned it and thereby rendered it unfit for use, a jury would be authorized to find that it had knowledge of its unsafe and unfit condition. See Baker v. United Iron Works, 90 Kan. 430 (133 Pac. 737); Caldwell-Watson Foundry &c. Co. v. Watson, 183 Ala. 326 (62 So. 859); 39 C. J. 434. The defendant could not place the duty of ascertaining the defectiveness of the tool upon the plaintiff, where it actually reconditioned the hammer and thereby rendered it unsafe. It could not in this manner delegate the duty of ascertaining the unsafe condition of the tool. Furthermore, the judge properly charged on the question of the relationship of the doctrine of the assumption of risk by a servant to the issues raised in this case.
4. • It was not error to exclude testimony of other railroad section foremen that they had seen particles from steel mauls sliver off when being used, without confining the testimony to the same kind of spike maul, that is a reconditioned spike maul, and being used in the same way as the one in the case at bar was being used when the injury in question occurred.
5. There was no error in refusing to admit the unsigned statements written by the claim adjuster of the defendant, and claimed by him to contain what the plaintiff told him about the occurrence when he visited him in the hospital, where the plaintiff had not signed these statements. Especially is this true where the witness was permitted to testify as to the contents of these papers.
6. “A witness may refresh and assist his memory by the use of any written instrument or memorandum; provided he finally shall speak from his recollection thus refreshed, or shall be willing to swear positively from the paper.” Code of 1933, § 38-1707. “A witness may, for the purpose of refreshing his recollection, use any memorandum useful for that purpose; and his testimony will not be objectionable if it is not dependent upon the memorandum, but is based upon the memory of the witness, even though the memorandum may be necessary in order to refresh his recollection.” A. C. L. R. Co. v. Hill, 12 Ga. App. 392 (6) (77 S. E. 316). Under these principles, the testimony of Dr. Jackson was not admissible. He was unable to testify independently of the card, after having
7. There was no error in refusing to declare a mistrial on the ground that the plaintiff’s counsel improperly argued certain matters before the jury, in view of the express withdrawal of the statements by the counsel, and in view of the instructions by the court with reference to them.
8. A new trial should not be granted because the effect of a certain excerpt frOni the charge was to place the burden on the defendant of proving its contentions; that is, the defenses of contributory negligence and assumption of risk. Ordinarily in master and servant cases the burden would be on the plaintiff servant as to such matters; but under the Federal employer’s liability act the rule is different. The burden in this respect is on the defendant; and this charge was not error for the reason assigned.
9. The court properly charged the jury on the doctrine of the assumption of risk as applicable to this case. The charge that “an employee does not assume the risk of injury from the negligence of other employees” was not error in that it was not qualified by the statement “until such negligence on the part of other employees became known to the plaintiff, or in the exercise of ordinary care should have been known to the plaintiff.” There was no issue that the plaintiff was injured by the negligence of a fellow servant; but the question was whether the defendant itself was negligent in furnishing to the plaintiff an unsafe tool with which to do his work, in that it took a simple tool and had it reconditioned, and did so improperly and thereby rendered the tool unsafe and unfit for use.
10. Under the facts the court properly charged that “one of the duties imposed by law upon the master is that it must use ordinary care in furnishing its servants with reasonably safe appliances with which to work. Another duty owing by the master to the servant is the duty of using ordinary care in the reasonable inspection of the instrumentalities furnished its servants.” The authorities cited in the first division hereof show that the simple tool doctrine in.its entirety was not applicable where the case was
11. There was no error requiring the grant of a new trial in the charge on the subject of arriving at the present cash value of the plaintiff’s loss of services.
12. No error of law appearing, and the evidence authorizing the verdict in favor of the plaintiff, the judge properly overruled the motion for new trial.
Judgment affirmed.