Columbus Mfg. Co. v. Gray

• Decision Date: 28 September 1911
• Docket Number: 2,868.
• Citation: 72 S.E. 273,9 Ga.App. 738
• Parties: COLUMBUS MFG. CO. v. GRAY.
• Court: Georgia Court of Appeals

72 S.E. 273

9 Ga.App. 738

COLUMBUS MFG. CO. v. GRAY.

No. 2,868.

Court of Appeals of Georgia

September 28, 1911

Syllabus by the Court.

Where in a suit for damages, the evidence offered is insufficient to sustain an allegation of one ground of negligence laid in the declaration, the court should give a peremptory instruction of nonliability upon that ground; but, if it should not give such instruction, and the defendant should thereafter make a request for instructions applicable to such ground of negligence, he could not thereafter complain that for want of evidence such instruction should not have been given, even though his request should not have been complied with; the general charge upon that subject being correct.

Among the absolute, continuous, and non-assignable duties of master to servant is the duty of the former to furnish to the latter a safe place to work, and also to refrain from giving orders which will require the servant to put himself in such position as that he will be subjected to risk of injury from a dangerous instrumentality. The failure to perform either of these duties gives rise to a cause of action to a servant injured in consequence of a breach thereof; and this is true even though other causes, beyond the control of the servant including the supervening negligence of a fellow servant, may have contributed to bring about the injury of which he complains.

The declaration, as amended, was sufficient to withstand the demurrers, general and special, filed by the defendant. The requests to charge, other than as above treated, in so far as the same were legal and pertinent, were covered by the general charge, which was itself full and free from error. The evidence was sufficient to sustain the verdict, and the discretion of the trial court in refusing a new trial was not abused.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Action by H. B. Gray against the Columbus Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Powell J., dissenting.

C. E. Battle and Howell Hollis, for plaintiff in error.

Hatcher & Hatcher and T. T. Miller, for defendant in error.

RUSSELL J.

The plaintiff brought an action against the defendant, to recover damages for personal injuries, wherein, in substance, she alleged, that at the time of her injury she was in the employment of the defendant company in its cotton mill, and her business was to operate machines known as warpers; that among other general duties imposed upon her was the duty to keep the warpers clean, and to clean them while they were standing idle; that these warpers were operated by pulleys running from overhead shafting; that on the day of her injury the defendant company was engaged in readjusting its shafting, so as to remove the warpers from one end of the room, where they had been theretofore operated, to the other end of the room; that there were a number of these warpers and they had been placed in position at the end of the room at which they were to be thereafter operated, and other workmen for the company, over whom she had no control, were engaged in transferring and installing the shafting in the new position; and that while they were so engaged in removing the shafting, and attaching it to the ceiling of the room above the place to which the warpers had been removed, she was ordered, by the boss or foreman under whom she worked, to proceed with the cleaning of the warpers; that while she was so engaged in and about her work, almost immediately under where the other servants of the defendant were engaged in installing the shafting, a piece of one of the fixtures connected with the shafting became detached, for some reason, and fell upon her head, causing the injury of which she complains.

She alleged that the persons engaged in removing the shafting were careless and inexperienced; that she did not know of their carelessness or inexperience in and about the work and, by the exercise of ordinary care and diligence on her part, she could not discover the danger incident thereto; that the defendant knew or ought to have known of the danger, and should have given her warning thereof, but failed to do so. She alleged that the defendant was negligent, among other things, because of the failure to warn her of the dangers incident to the removal of the said shafting, boxing, and hangers, which dangers were alleged to be wholly unknown to her, and by the use of ordinary care on her part could not have been discovered by her, but were known, or ought to have been known, to defendant. She alleged that the defendant was negligent because the place where she was instructed to work, considering the character of the work and dangers incident to the removal of the shafting, pulleys, and hangers overhead, was not a reasonably safe place for her to work, and that she did not know, and had not equal means of knowing, that the place was unsafe, and the defendant knew, or ought to have known, of the dangers; further, that the defendant was negligent in not exercising ordinary care in the selection of the servants engaged in the removal of the shafting, boxing, and hangers before mentioned; that the servants so employed were careless, inexperienced, and negligent in said work; that the defendant knew, or ought to have known, of the incompetency of said servants, and that the plaintiff did not know thereof, and, further, that the defendant was negligent in mode and...