Butler v. Atlanta Buggy Co.
| Decision Date | 19 December 1911 |
| Docket Number | 3,261. |
| Citation | 73 S.E. 25,10 Ga.App. 175 |
| Parties | BUTLER v. ATLANTA BUGGY CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
It appearing from the evidence in behalf of the plaintiff that even conceding that his employer was guilty of negligence, as alleged in the petition, in furnishing him a defective instrumentality with which to do his work, yet his opportunities of discovering this defective condition were equal, if not superior, to those of the employer, and that this defective condition was patent to superficial observation, and was in fact observed by the plaintiff before he was injured by his voluntary use of the defective instrumentality, a nonsuit was properly granted.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by J. T. Butler against the Atlanta Buggy Company. Judgment for defendant, and plaintiff brings error. Affirmed.
In an action for injuries to an employee, where the evidence of plaintiff showed that, if his employer was guilty of negligence in furnishing a defective instrumentality with which to do his work, yet his opportunities for discovering the defect were equal to those of his employer, and that the defect was patent to a superficial observation, and was known to plaintiff before he was injured, a nonsuit was properly granted.
Butler sued the Atlanta Buggy Company for damages on account of personal injuries. The court overruled a demurrer to the petition, and after the introduction of testimony for the plaintiff, granted a nonsuit, and the latter judgment is here for review. The allegations of the petition are in substance as follows: Butler was an employé of the defendant as a woodworker, and had been so employed for over two years, and while he was at work endeavoring to saw a piece of wood with a rip or buzz saw furnished him by the defendant for that purpose, his left hand was jerked against the saw, and two of his fingers were cut off, and he was otherwise injured. He claims that the saw was not in a proper condition to be used because several of the teeth were improperly set; that is some of the teeth to the saw were bent more than the others. This defective condition caused the plank that he was pushing against the revolving saw to jerk back, and, when these imperfect teeth came against the plank, his hand was jerked against the saw. He did not know of the defective condition of the saw, and had no opportunity of discovering its defective condition before he used it, and he was not guilty of negligence in attempting to use it in this condition. The defendant had an employé whose duty it was to keep this saw in proper condition, and this duty had not been discharged and an inspection by the defendant through this employé would have discovered this defective condition of the saw. It is alleged that the employer was negligent in failing to furnish the plaintiff with proper machinery with which to work; that in its improper and defective condition the saw was not a safe instrument for him to use at his work.
The plaintiff proved his employment, the nature of his work, and that several of the teeth of the saw he was using were set out more than the other teeth; that the defendant kept an employé whose duty it was to keep the machine and tools in proper condition, and that while he was attempting to use the saw, being ignorant of its defective condition, his hand was injured in being thrown against the saw; that at the time he received the injuries he was pushing a piece of plank about 18 or 20 inches long, 5 or 6 inches wide, and three-fourths of an inch in thickness, against the revolving saw, for the purpose of having it cut or ripped; that the plank lacked only about 5 inches of being sawed or ripped through, and while he was pushing the timber against the saw the piece of timber would rise up and not go through and it became necessary for him to put his hand around the saw to hold down the timber; that, just as he got the plank or piece of timber almost cut through, the saw raised or jerked the plank, and his hand was thus thrown against the saw and injured; that he was sawing the plank in the usual and proper way, and the reason the plank rode the saw and jerked his hand against it was "because one of the teeth of the saw, that was bent too far out, instead of going through the slot which had been sawed in the plank, struck the plank by the side of the slot," thus raising the plank up and throwing his hand against the saw. The saw was about 12 inches in diameter, and revolved towards the plank where the timber was pushed against it. It was set in a table having a steel top, and almost a half of the saw revolved above the surface of the table. The timber to be sawed was pushed along the surface of the table to the saw.
The plaintiff himself testified that he had been working as an employé of the defendant for about two years, and that in connection with this work he made constant use of the saw in question; that he was an experienced workman; that he did not notice the condition of the saw on the day of his injury, and was doing his work that day in the proper and usual way; that it was necessary for him to put his hand in front of the saw to hold the plank down, as it flew up, in order to get it through the saw; that it was a piece of hard oak timber; that he was using a guide or gauge for the purpose of having a straight line sawed, and that a guide would keep the line straight if it was a good one, but this guide "would just wobble about"; that it was not of any account, and this made crooked the line he was endeavoring to saw; that he saw the guide "wobble"; that there was no way to tighten it, and that he went on and did the best he could with the "wobbly guide," because he had not noticed its imperfect condition until after he had started...
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