Appeal
from Common Pleas Circuit Court of Abbeville County; Klugh
Judge.
WOODS
J.
The
plaintiff lost an eye from the explosion of a glass
lubricator attached to a locomotive which he was running for
the defendant railroad company as engineman. He recovered
judgment for damages on the following allegations of breach
of duty on the part of defendant: "That the said
defendant did not use due care in selecting for the use of
the plaintiff on the said engine a suitable and safe
lubricator; but on the contrary, with gross negligence
carelessness, willfulness, wantonness and recklessness
selected for the use of the plaintiff and furnished the said
engine with an unsuitable, defective, and unsafe lubricator,
it being unsuitable, defective, and unsafe in the following
particulars, to wit: "(a) In that the aforesaid glass
tubes of the said lubricator were not thick enough and strong
enough to withstand the steam pressure of about 210 pounds to
the square inch placed thereon, and the said defendant might
by the exercise of due care have known and did know that the said glass tubes were not thick enough and strong
enough to withstand the said steam pressure. (b) In that the
said glass tubes of the said lubricator were not each molded
in a solid piece, but were made by filing them off from long
pieces of water tubes, thus leaving the ends uneven and easy
to break by the enormous steam pressure necessarily placed
upon them, and the said defendant might by the exercise of
due care have known and did know that the said glass tubes on
the said lubricator were not properly made and that they were
defective, unsafe and dangerous to the plaintiff. That the
said defendant well knew that the said lubricator was
defective and unsafe; an explosion similar to the one
hereinafter described having occurred with it before the time
hereinafter mentioned, but the plaintiff did not know it was
either defective or unsafe until after he received the injury
hereinafter mentioned."
The
accident having happened in the state of Georgia, it is
agreed by both parties that their rights and liabilities are
fixed by the following sections of the Georgia Code of 1895:
"Sec. 2323. Injury by coemployé. If the person injured
is himself an employé of the company, and the damage was
caused by another employé, and without fault or negligence on
the part of the person injured, his employment by the company
shall be no bar to his recovery."
"Sec. 2611. Duty of master. The master is bound to
exercise ordinary care in the selection of servants, and not
to retain them after knowledge of incompetency; he must use
like care in furnishing machinery equal in kind to that in
general use, and reasonably safe for all persons who operate
it with ordinary care and diligence. 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 must give the servant warning in respect thereto.
Sec. 2612. Duty of Servant. A servant assumes the ordinary
risks of his employment, and is bound to exercise
his own skill and diligence to protect himself. In suits for
injuries arising from the negligence of the master in failing
to comply with the duties imposed by the preceding section,
it must appear that the master knew or ought to have known of
the incompetency of the other servant, or of the defects or
danger in the machinery supplied; and it must also appear
that the servant injured did not know and had not equal means
of knowing such fact, and by the exercise of ordinary care
could not have known thereof."
1. The
exceptions alleging error in refusing to grant a motion for
nonsuit cannot be sustained even under the Georgia statute.
As there is to be a new trial, we refrain from any analysis
of the testimony, but there was some evidence of defects in
the lubricator to which the explosion might be attributed
and these defects were of such character that the jury might
infer they should have been known to the defendant, and yet
that the plaintiff did not know of them and did not have
equal means with the defendant of knowing them, and could not
have known them by the exercise of ordinary care. The
plaintiff might...
