Brown v. Rome Mach. & Foundry Co.
| Decision Date | 10 November 1908 |
| Docket Number | 1,257. |
| Citation | 62 S.E. 720,5 Ga.App. 142 |
| Parties | BROWN v. ROME MACH. & FOUNDRY CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
One of the nondelegable duties of a master is to furnish an adequacy of competent servants to do the work in hand.
[Ed Note.-For other cases, see Master and Servant, Cent. Dig. § 328; Dec. Dig. § 163. [*]]
An action brought by a servant against his master for damages resulting from personal injuries received through a breach of one of the master's duties under the relationship between them presents a case of tort in which the broken duty "flows from relations created by contract." In such cases the duty and the right of action for its breach are modified by the terms, express or implied, of the underlying contract.
(a) Every contract is enforceable to the extent, not only of its express terms, but also of its connotations.
(b) Under the usual contract of employment the law raises an implied warranty on the part of the master that he will keep and maintain the place of work and its appurtenances free from hidden dangers so far as he knows of them, or, in the exercise of ordinary diligence, can anticipate or discover them. Similarly it implies an agreement on the part of the servant to assume the risk of such dangers as are within his knowledge, or as he can discover and foresee by the exercise of ordinary care.
(c) Assumption of risk when pleaded to an action ex delicto by a servant against a master is a defense growing out of the contract which gave existence to the relationship on which the action is based.
(d) Viewed as the basis of an action ex delicto by the servant "the duty of a master to use ordinary care to keep his premises and to conduct his business in such manner that his servants may perform their duties in safety is but a phase of the broader and more anciently recognized doctrine of the common law that every person who expressly or impliedly invites another to come upon his premises, or to use his instrumentalities, is bound to use ordinary care to protect the invited person from injury."
[Ed Note.-For other cases, see Master and Servant, Cent. Dig. §§ 173, 174, 232, 538, 574-600; Dec. Dig. §§ 102, 122, 203, 217 250; [*] Contracts, Cent. Dig. § 751; Dec. Dig. § 168. [*]]
The fact that the plaintiff by his own negligence contributed to bringing about the injury which he claims to have received through the negligence of the defendant is always good in defense of an action ex delicto. Contributory negligence does not relieve the defendant by denying the wrongfulness of his conduct or omission, but by so inculpating the plaintiff that the courts through motives of public policy raise a barrier against him.
[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 84; Dec. Dig. § 80. [*] ]
The assumption of the risk by the servant is a matter purely of contract, and is governed by the canons of contract. Contributory negligence is a matter relating solely to torts, and is governed by the principles peculiarly applicable to that branch of jurisprudence.
[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. §§ 203, 227. [*]
For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584-7585; vol. 2, pp. 1540-1547; vol. 8, p. 7617.]
Assumption of risk, being contractual, implies choice and freedom of consent. Before choice can be implied, there must be an opportunity to choose.
(a) Where the allegations of the petition show that the plaintiff was placed in a dangerous emergency by a sudden negligent act of his master and was injured, it will not be adjudged on demurrer that he assumed the risk of continuing to work in the face of this increased hazard when it appears that the injury followed so quickly upon the negligent act that he did not have a fair opportunity of reasonably exercising any choice in the matter.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1076; Dec. Dig. § 288. [*]]
The question of the plaintiff's contributory negligence is under the allegations of the petition issuable and solely for jury.
Error from City Court of Floyd County; Harper Hamilton, Judge.
Action for personal injuries by M. R. Brown, by next friend, against the Rome Machine & Foundry Company. Judgment for defendant, and plaintiff brings error. Reversed.
The petition as amended alleged substantially as follows: Plaintiff was, when injured, an employé of defendant, in the capacity of an apprentice moulder, whose duties were the same as those of a moulder, except that the class of work is not as good, for the reason that he was learning the trade. He did learn the work of making forms, poured and carried iron, and did similar work in the defendant's foundry at which castings were made. The plaintiff, with two other men, was carrying molten iron in a ladle and pouring it into a flask for the purpose of making a casting. The ladle was an iron bucket, about 18 inches high, and about 10 inches in diameter inside. the weight of the casting being made was about 1,800 pounds. As the plaintiff and the two men were about to carry the ladle to the flask, the defendant's foreman in charge, W. A. Duncan, called one of the men with the plaintiff away from the work, and put him at other work, directing the plaintiff and his other helper to carry and pour the iron, as they had started to do. Duncan was in direct charge of the room in which the plaintiff was working, and directed all of the men in the foundry what work to do. He was the immediate superior of the men in the foundry, and superintended the work therein. The ladle was full of iron, and the plaintiff and the two men had picked it up by means of the pole and shafts above mentioned. The plaintiff was behind between the shafts, holding them in his hands, and the other two men were in front, one on each side of the pole. This ladle of iron was to be carried to the flask, a distance of about 12 feet, and poured into the flask on top of molten iron already poured; and Duncan, after calling one of the men, ordered the plaintiff and his helper to proceed. This the plaintiff and his helper undertook to do; and, while so doing, the helper became overbalanced by his load, and the ladle struck against the end of the flask, and splashed some of the molten iron into the plaintiff's left eye. The helper became overbalanced by reason of the weight he was carrying by the pole, which, as it had to be carried to one side of him, had a tendency to disturb his balance. By reason of being overbalanced, the ladle swung out from him against the side of the flask, and struck against the flask, and the impact caused the iron to splash as aforesaid. The ladle weighs about 100 pounds, and holds about 300 pounds of molten iron. The ladle should be and is intended to be carried by three men. On account of the weight of the ladle and its contents, and the dangerous character thereof, it should always be and is customarily carried by three or four men. The business of carrying and pouring molten iron has to be conducted rapidly, to prevent the iron from cooling and solidifying. The defendant was negligent in failing to furnish a sufficient force to conduct the work with reasonable safety. The plaintiff was free from fault or negligence in and about the transaction by reason of the facts stated. He was working under the immediate orders of a superior foreman, was in the line of his duty and scope of his employment, and was intently engaged in his work, which had to be conducted with great rapidity as aforesaid; so that he did not have time to, and did not, realize the risk and danger of performing the work with only two men as aforesaid. By reason of the rapidity of action required, he was acting in an emergency, and did not assume or understand the increased hazard of the work. The defendant was negligent in increasing the hazard and risk of the plaintiff's employment without due warning, and without giving him time to realize the increased danger. The injury is the direct and proximate result of the defendant's negligence hereinbefore alleged. The judge sustained a general demurrer, and the defendant excepts.
An action by a servant against his master for personal injuries presents a case of tort in which the broken duty "flows from relations created by contract," and in such case the duty and the right of action for its breach are modified by the terms, express or implied, of the underlying contract.
The contributory negligence of plaintiff will defeat his recovery for the negligence of defendant.
Seaborn & Barry Wright, for plaintiff in error.
Smith, Hammond & Smith and Dean & Dean, for defendant in error.
1. As originally drawn, the petition was subject to dismissal on demurrer. It did not show a cause of action. It merely alleged that, at the time one of the two necessary helpers was called away, the plaintiff and his fellow laborers were about to carry the ladle of molten iron to the flask, not that they were already in the act of carrying it. As thus set forth, the transaction was clearly covered by the cases of Worlds v. G. A. R. Co., 99 Ga. 283, 25 S.E. 646, and Freeman v. Savannah Electric Co., 130 Ga. 449, 60 S.E. 1042. It would also be easily distinguishable from the case of King v. Seaboard Air Line Railway, 1 Ga.App. 88, 58 S.E. 252, for it could fairly have been said that the...
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