Banks v. J. S. Schofield's Sons Co

• Decision Date: 10 November 1906
• Citation: 126 Ga. 667,55 S.E. 939
• Parties: BANKS . v. J. S. SCHOFIELD'S SONS CO.
• Court: Georgia Supreme Court

55 S.E. 939

126 Ga. 667

BANKS .

v.J. S. SCHOFIELD'S SONS CO.

Supreme Court of Georgia.

Nov. 10, 1906.

Master and Servant—Injury to Servant— Defective Tools.

A master is not responsible in damages to his servant for injuries sustained by the latter while in the employment of the former, in consequence of defects in a tool furnished by the master, which the servant was using at the time of the injury, when the defects were such that they were known to the servant, or could have been known by the exercise of ordinary care on his part.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]

(Syllabus by the Court.)

Error from City Court of Macon; Robert Hodges, Judge.

Action by Jim Banks against J. S. Schofleld's Sons Company. Judgment for defendants, and plaintiff brings error. Affirmed.

Jim Banks sued the J. S. Schofield's Sons Company, a corporation, for damages alleged to have been sustained by him by reason of personal injuries received while in the employment of the defendant, which were alleged to be due to Its negligence. The defendant demurrer to the petition, on the ground that it set forth no cause of action. The demurrer was sustained, and the plaintiff excepted. Leaving out the allegations intended to show the extent of the plaintiff's injuries and the amount of his damages, the substance of the petition was as follows: The defendant employed the plaintiff, a man 38 years of age, to "dress off the rough edges of the iron on" the truck frame of an engine, and furnished him, for this purpose, with an iron chisel, which was old, worn, and much too short for the work. While the plaintiff was using this chisel "in dressing or chipping" the iron of such truck frame, "a piece of steel flew off from the end of said chisel and struck [him] in his left eye, destroying the sight of the same." The "defendant company was negligent in not furnishing petitioner with a safe tool with winch to work; b * * said chisel was much too short for said work, being about six Inches in length; and petitioner, in bending over to see the same and where to direct it, brought his eye In close proximity to the particles of metal that fly off from said chisel or from the engine frame on which petitioner was engaged atwork." He was "unskilled in said work, and did not know of the danger In bringing his eye so near flying pieces of metal, " but the defendant "knew of the danger to petitioner in the use of said tool, but failed to warn him thereof." The chisel "was old and worn, and petitioner, on account of his unskillfulness, did not know of the danger of using the same In his work;" and deficiency In said tool, and its weakness, and its liability to break in its condition was "known to the [defendant], or could have been ascertained or discovered by the use of ordinary care on its part" At the time the plaintiff was injured he was "in the exercise of all ordinary care and diligence, " and the injuries were "caused entirely by the negligence of the [defendant] in failing to furnish him with safe and sufficient tools with which to do the work required of him."

Glawson & Fowler, Jos. H. Hall, and Warren Roberts, for plaintiff in error.

Hardeman & Jones, for defendant in error.

FISH, C. J. (after stating the facts). We have stated the substance of the averments of the petition, and from them it will be seen that, notwithstanding some allegations which tend somewhat to indicate a purpose on the part of the pleader to seek a recovery upon the ground that the work, unknown to the plaintiff, was extraordinarily hazardous, and the defendant failed to warn him of the dangers incident thereto, the real gist of the petition is that the defendant furnished the plaintiff, its servant, with a defective and dangerous chisel with which to do the work required of him, by the use of which he was Injured. For instance, while the plaintiff made the surprising allegation that he, a man 38 years old, being unskilled in this particular work, did not know—what it seems any man of common sense ought to have known—that It was dangerous to bring his eyes in close proximity to flying particles of metal, this allegation, Instead of being followed by an averment that the defendant failed to warn him of this danger, is simply followed by an allegation that the defendant knew of the danger to the plaintiff in the use of this particular tool, but failed to warn him of it. And, as if to more clearly Indicate that the purpose of the pleader was to allege that defendant failed to warn plaintiff of danger ordinarily Incident to work of this character, but to allege a failure to warn him of the danger of using this defective chisel in performing it, it is alleged that "said tool was old and worn, and petitioner, on account of his unskillfulness, did not know of the danger of using the same in his work, and that the deficiency of said tool, and its weakness, and its liability to break In its condition, was known to [defendant], or could have been ascertained or discovered by the use of...