Freeman v. Savannah Electric Co.

Citation60 S.E. 1042,130 Ga. 449
PartiesFREEMAN v. SAVANNAH ELECTRIC CO.
Decision Date28 March 1908
CourtSupreme Court of Georgia

Syllabus by the Court.

In an action for damages against an electric street railway company by a motorman on account of personal injuries, the petition alleged as follows: While operating a car of the defendant he discovered that the brake was out of order and would not catch. He telephoned to the day foreman to furnish him with another car, stating the defective condition of the one in use. The foreman promised to immediately substitute another car for the one which the plaintiff was operating; but 3 1/2 hours elapsed before this was done. In consequence of the defective condition mentioned, the plaintiff was compelled to exert all of his strength and to throw his weight upon the brake, in order to stop the car. As a result of this overexertion he was afflicted with a hernia. Held, that the petition was properly dismissed on general demurrer.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 809-854.]

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by J. W. Freeman against the Savannah Electric Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Twiggs Oliver, Gazan & Oliver, for plaintiff in error.

Osborne & Lawrence, for defendant in error.

LUMPKIN J.

This case comes before us as an exception to the dismissal of an action for damages, on general demurrer. While negligence, as a question of fact, under the evidence, is for the determination of the jury, if a prima facie case is made out, yet whether a petition on its face sets out a cause of action must be determined by the court, if a demurrer is interposed. Hill v. Louisville & Nashville R. Co., 124 Ga. 243, 52 S.E. 651, 3 L.R.A. (N. S.) 432. The general rules in regard to the duty of a master to use care in furnishing his employé with reasonably safe machinery are stated in Civ. Code 1895, §§ 2611, 2612. The former section declares that the master is bound to exercise ordinary care in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary skill, and that, 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. The latter section provides that: "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 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." There is no question of latent defects here. Nor, as will appear hereinafter more fully, was it a case raising the question, as one of fact, whether the danger was such as the servant did not know and had not equal opportunity with the master for knowing.

The plaintiff alleged that he knew of the defect, gave notice of it to the defendant, and asked to be furnished another car. Ordinarily, although a defect in a machine may be known to the servant, if the master promises to remedy it, or to supply a different machine, and directs the servant to proceed with its use, this takes the case out of the operation of the general rule, which declares, as a matter of law, on the doctrine of assumption of risks, that a servant who knowingly uses a defective and dangerous machine and is injured thereby cannot recover damages from the master. The servant may often rely on such assurance, and continue to use the machine, at least for a reasonable time and with due care, while awaiting the remedying of the defect; and such continued use will not of itself necessarily prevent a recovery. So far as the particular peril is concerned, the implication of law of engagement by the servant to assume the risk is rebutted by the giving and accepting of the assurance. Cheeney v. Ocean Steamship Co., 92 Ga. 726, 731, 19 S.E. 33, 44 Am.St.Rep. 113. The danger, however, of even temporarily continuing to use the machine, may be so obvious that no man of ordinary prudence would proceed on the expectation or promise of a future remedy; and the defense of negligence on the part of the servant in continuing in obvious and imminent danger, or in the manner of using the defective machine, may arise. If the master is negligent, the servant would still be prevented from recovering if by the use of ordinary care he could have avoided the consequences of the defendant's negligence and failed to do so.

Reduced to its simplest form the plaintiff alleged that while operating the car of the defendant he discovered that the brake...

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  • Freeman v. Savannah Electric Co
    • United States
    • Supreme Court of Georgia
    • March 28, 1908
    ...60 S.E. 1042130 Ga. 449FREEMAN .v.SAVANNAH ELECTRIC CO.Supreme Court of Georgia.March 28, 1908. Master and Servant—Injury to Employe-Promise to Repair. In an action for damages against an electric street railway company by a motorman on account of personal injuries, the petition alleged as ......

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