Bowen, Jewell & Co. v. Adams
| Decision Date | 21 December 1907 |
| Citation | 59 S.E. 795,129 Ga. 688 |
| Parties | BOWEN, JEWELL & CO. et al. v. ADAMS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Though a servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself, this assumption of risk, where the employment concerns the operation of a machine with a defective or dangerous appliance, is subject to the limitation that the servant must not only have actual or imputable knowledge of the defective machinery, but also of the danger attendant upon its use, where such danger is not so obvious as to be apparent to a person in the exercise of ordinary care. With respect to such unassumed risks, the master is under duty to warn the servant.
(a) The petition was not subject to general demurrer.
[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 310.]
An amendment, which sets forth an act of negligence additional to others originally pleaded as being a concurring and contributing cause of the injury for which damages are asked in the original petition, does not add a new and distinct cause of action.
[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 694.]
There was sufficient evidence to support the verdict.
[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 909-912.]
Error from Superior Court, Hancock County; H. M. Holden, Judge.
Action by A. D. Adams against Bowen, Jewell & Co. and others. From a judgment for plaintiff, defendants bring error. Affirmed.
Wm. H Burwell, for plaintiffs in error.
L. D. McGregor and W. H. Fleming, for defendant in error.
This is an action by Anna Drucilla Adams against Bowen, Jewell & Co. to recover damages for the negligent killing of the plaintiff's minor daughter, who at the time of her death was an employé of defendants. The material parts of the petition relied on as showing that the death of plaintiff's daughter was occasioned by the defendants' negligence may be briefly summarized as follows: The defendants operated a bag factory, and the plaintiff's daughter, aged 16, in good health, and of average intelligence, was employed in the printing and press room of defendants' factory. In this room were three printing machines. The particular machine at which plaintiff's daughter worked was what is known as a single printing machine, of old pattern and a second-hand machine, and unlike the other two machines, which were of modern type. The duties of the employé were to feed the single machine, and to clean it when ordered by the defendants' foreman. One Zimmerman was employed by the defendants to act as "vice principal or quasi master" over the defendants' servants working in the printing room. On the day of the catastrophe, Zimmerman stated to the employés of defendants in the printing room that he had filed all orders on hand, and directed the employés to clean the printing machines underneath. It was Zimmerman's duty to throw off the main belt that ran from the main shafting to the shafting that was connected to the printing machines, which duty he failed to perform at the time of giving the command to clean the machines. Instead of throwing off the main belt, he pulled a lever that threw the minor belt from the machine where the employé worked to a loose wheel, which caused this machine to stop without stopping the other two machines. This lever was used for the purpose of throwing the minor belt back to the wheel of the printing machine and putting it in motion. These conditions were not patent, and were unknown to the employé, who had never been warned of the dangers incident thereto. There were two rods underneath the single machine; one of them connecting the levers, and by moving the rod a certain way the lever would shift the belt from the loose pulley to the rigid pulley on the machine, and the machine would be put in motion. The employé did not know that by rubbing the rod attached to the lever the belt would be shifted from the loose pulley to the machine, nor was such condition visible, nor was the employé warned of the danger. Neither did the employé know that the rod under the machine was attached to the lever. In obedience to the command of Zimmerman, after the single printing machine had been stopped, the employé went underneath the machine for the purpose of cleaning it, and while so employed she moved the rod attached to the lever so as to cause the machine to be put in motion, and without fault on her part she was instantly killed by the machinery. It was alleged that the single printing machine was not fit for the purpose for which it was used; that it was a risk to work at the same on account of its pattern, and the length of time it had been used. An oral motion was made to dismiss the petition because the defendants were not liable in damages for the death of the plaintiff's daughter, occurring in the manner therein alleged. The court refused to dismiss the petition, and this is assigned as error.
1. The chief dereliction of duty of the master, as alleged consisted in his failure to warn the servant of the danger incident to her employment, which danger was latent in character and unknown to the servant. The servant worked at the machine which killed her; but in avoidance of the possible inference from that fact of her knowledge of the machine, and the danger incident thereto, it was alleged that the rod attached to the lever was underneath the machine, that she did not know it was so attached, that the danger from the mechanism was not patent, and that she did not know of the danger, and had not been warned as to the same. These allegations assign a sufficient reason why the servant did not apprehend the unknown peril associated with...
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