Baker v. The Western

• Decision Date: 28 February 1882
• Parties: Baker. vs. The Western and Atlantic Railroad COMPANY.
• Court: Georgia Supreme Court

68 Ga. 699

Baker. vs. The Western and Atlantic Railroad COMPANY.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Railroads. Damages. Negligence. Master and Ser-vant. Before Judge FAIN. Catoosa Superior Court. August Term, 1881.

Reported in the decision.

W. K. Moore, Jas. Hunt, for plaintiff in error.

W. H. PAYNE; R. J. McCamy, for defendant.

Speer, Justice.

This was an action brought by plaintiff in error as an employe against the defendant to recover damages resulting to the plaintiff by reason "of injuries he sustained in an injury to his eye caused by a small piece of iron or steel flying off from the stroke of a heavy hammer upon a cleaver, striking him in his eye and becoming imbedded in the pupil or ball of his eye. He alleges that he was, at the time of the injury, holding the cleaver, and they were cutting a bar to fit on the track, and the hammer and cleaver used on this occasion were both unfit instruments to be used for said purpose of cutting bars—both being worn and part of the face of the hammer, more particularly the front part, being broken and worn off so as to cause the hammer to bounce and slip and knock or throw off other parts of the face thereof, and the cleaver being much battered and worn; and the injury aforesaid was occasioned by the use of said improper and unfit tools. That the defendant knew, and the proper officers knew, that the tools were unsafe and worn as aforesaid, and had been notified of their condition by plaintiff and others, but had failed to repair them." He further avers that the defendant and its officers and employes, including the track boss, were guilty of negligence in failing to keep their tools in proper repair and fit for use, and in failing to order their work carried on in such a way as not to hurry the hands while using defective tools, and that the failure and omission of duty as afore-said of defendant\'s employes while carrying on the work as aforesaid, caused the serious injury to be inflicted upon plaintiff as complained of, and that plaintiff was without fault in the premises, etc.

Baker the plaintiff, testified "that he was injured about the time alleged; had been in defendant's employment about six months at that time. That on the day of the injury the hands were returning, on account of rain, to their shanties. That Mitchell, the boss of the hands, discovered one of the iron rails of the track was broken about a foot from the end. The boss told witness to get a cleaver off the dump car, and told another hand to take the sledge and cut a bar of iron lying near the broken rail so as to fit it in place of the broken rail. Told the striker to give it h—1, as the passenger train would be due in fifteen minutes; went to dump car and got hold of the only cleaver he could find sharp enough to cut the bark, there were others there, but they were too dull; the one he took was battered almost down to the eye but had been recently ground. The usual hammer used in cutting bars was the striking hammer; the sledge then used was a good deal heavier and was used generally in breaking off the bar after it was cut. The edges of the hammer were broken and its surface uneven; it was used in striking the cleaver when they were in a hurry—sometimes to strike the cleaver in cutting bars of iron, and there was more danger in using it with its uneven face than if it had been smooth and even, and he knew this at the time. He had complained to the boss some time before this more than once that the tools were not in good order and the boss had told him he would have them all sent to the shop and repaired at the end of the quarter. That the road had offered a premium to the track boss who would keep up the best track at the least expense to the company, and he was trying to get it. Witness knew the condition of these tools, and knew they were more unsafe than they would be if kept in good order. Thesledge had been in use about four months, and only used for cutting iron with when in a hurry. The striker was the strongest and quickest they had. Witness objected to the striking being done with the sledge at the time, just before he was hurt; but was uneasy about the train being wrecked and somebody hurt. He had worked on the road seven years in all. They were working in a hurry to get the bar on before the train came, and succeeded a minute or two before it came." Witness then described the extent of injury, pain, etc., and the cause of the injury as alleged in his writ.

Dr. Kirkpatrick, a physician, testified as to the injury and its extent and probable consequences to plaintiff. Plaintiff having closed the court charged the jury: (1.) That the Code provides that employes of railroads can sue for damages when there is no negligence on their part, but the injury occurs on account of some act of a co-employe. If the person suing is himself an employ6 of the company, and the damage was caused by another employe, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. Prior to 1856 there was no right of action by an employe whatever when the injury was caused by the negligence of a co-employe; but the statute and its construction by the supreme court now govern. There is but one ground upon which an employe can recover, and that is when there is no fault on his part—when he is entirely faultless. Therefore, the employe must exercise ordinary care and diligence to prevent an injury to his person—he must be wholly without fault. If both are at fault—if he contributes anything in the way of negligence and the co-employe is also at fault, then he could not recover. If neither are at fault, and the company show they have exercised reasonable care and diligence, then he could not recover, because it would be an accident. He must show he is without fault, and the burthen is upon him; but he can recover ifno fault is shown on his part whatever and there was fault on the part of the railroad company.

(2.) An employe under the law is presumed to be negligent if he works with tools he knows to be defective, and knows them to be dangerous. If the plaintiff, being a free man and having the right to manage his own conduct and person, continues to use tools or machinery that are defective and dangerous, then he could not recover. If he knew of the danger of working with them, he could not recover at all, whatever the injury might be. The law, however, does...