Emanuel v. Georgia & F. Ry. Co.
| Decision Date | 01 October 1914 |
| Citation | 83 S.E. 230,142 Ga. 543 |
| Parties | EMANUEL v. GEORGIA & F. RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition set forth a cause of action, and was not subject to general demurrer.
Additional Syllabus by Editorial Staff.
"Ordinary risks" are usually described as being those incident to the business, and do not imply the result of the master's negligence. The expression "extraordinary risks" is generally used to describe risks arising from the negligence of the master, and they are generally held not to be assumed unless known or obvious.
A risk arising from a master's negligence during the service is not assumed by the servant, where the danger is unknown to the servant, or not obvious to a man or ordinary prudence.
Error from Superior Court, Emanuel County; B. T. Rawlings, Judge.
Action by F. R. Emanuel against the Georgia & Florida Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
Emanuel sued the Georgia & Florida Railway Company for damages alleging, among other things, as follows: His duties were only to labor as a section hand. The hands were carried to and from work on a gasoline motor car. It was no part of his duty to operate, manage, inspect, repair, or care for the car. He was ignorant of machinery, and could not have discovered a defect in it by inspection. On the day in question the plaintiff was being transported from his place of work into Oak Park. At a point about 300 yards north of the depot the car stopped and the engines ceased to work. The foreman of the gang ordered the plaintiff to alight and help push the car forward, "being told that" this would put the engines in motion. The plaintiff obeyed. Seizing a rod at the left side and near the front of the car, and walking on the ends of the cross-ties, he assisted in pushing the car as directed. After pushing the car forward a short distance, the engines "popped" and threw the car forward with great force and speed, and the ends of the cross-ties upon which the plaintiff was walking gave way under his feet. The quick movement of the car jerked and threw him in front of it. He fell on his back on the rail in front of the car, which ran upon and injured him. The defendant was negligent in furnishing a defective motor car for the transportation of the section gang. It was not working properly. The engines constantly ceased action, and the men were compelled to walk and tug it into the station. Immediately after the injury to the plaintiff the defendant was forced to abandon the use of the car on account of the defects. It was negligent, also, in allowing decayed cross-ties to remain under the tracks. These conditions had existed for several days before the injury, and in the exercise of ordinary care the defendant must or should have known thereof. The plaintiff was free from fault, had no knowledge of the condition of the car, and had not been warned thereof; nor was he aware of the rotten condition of the cross-ties. The defendant filed a general demurrer, which was sustained, and the plaintiff excepted.
Walter F. Grey and T. N. Brown, both of Swainsboro, for plaintiff in error.
Saffold & Jordan, of Swainsboro, for defendant in error.
HILL J. (after stating the foregoing facts).
The petition was dismissed on general demurrer. It was contended that the plaintiff assumed the risk of the danger arising from the defective motor car, and that this appeared upon the face of the petition. By Civil Code 1910, § 2782, it is declared that every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier, or in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband or child or children of such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defects or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, road bed, works bolts, wharves, or other equipment; provided that no recovery can be had if the person killed or injured brought about his death or injury by his own carelessness, amounting to a failure to exercise ordinary care, or if he, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence. The next section provides that the fact that the employé may have been guilty of contributory negligence, not amounting to a failure to exercise ordinary care, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé; provided that the employé shall not be held to have been guilty of contributory negligence in any case where the violation by the common carrier of any statute enacted for the safety of employés contributes to the injury or death of such employé. The next section reads as follows:
"In any action brought against any common carrier under and by virtue of any of the provisions of the two preceding sections, to recover damages for injuries to or the death of any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of the employés contributed to the injury or death of such employé."
In dealing with the doctrine of the assumption of risks by an employé, the difference between ordinary and extraordinary risks must not be overlooked. Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master's negligence. The expression "extraordinary risks" is generally used to describe risks arising from the negligence of the master, and they are generally held not to be assumed unless they are known or obvious. 2 Bailey, Per. Inj. (2d Ed.) § 356. Different views have been advanced by different authorities as to the basis of the doctrine of assumption of risks by an employé. Many of them declare that it is based upon the contract of employment, and that impliedly a servant agrees to assume, not only the risks of ordinary dangers incident to the business, without negligence on the part of the master, but also those arising from the negligence of the master, after they have become known to the servant and are obvious to him, and that if he nevertheless continues to perform the service in view of the risk thus existing, at least without promise of correction, or other modifying circumstances, he cannot recover from an injury arising therefrom. Other authorities contend that the doctrine of assumption of risks, at least so far as the risk arises from negligence on the part of the master, is based on the maxim "Volenti non fit injuria," which declares in substance that he who consents to an act will not be heard to claim that he is wronged by it. Still others treat the action of the servant in remaining in the service with knowledge of the negligence of the master and its attendant risk as constituting an independent act of waiver. And some cases are difficult to classify at all.
We need not stop to discuss these contentions; nor need we deal with the abolition of the fellow-servant doctrine. The exact questions here presented are whether, under the railroad employers' liability act of this state, the doctrine of assumption of risks as to a defective machine, such as a motor car, remains of force as a defense to the company, except in cases where the violation by the company of a statute enacted for the safety of the employés contributes to the injury or the death of the employé; and, if so, whether the allegations of the petition in the present case show such an assumption of the risk, or such negligence on the part of the plaintiff, as to prevent a recovery by him.
It might be contended with some force that the broad language employed in the section of the statute first above mentioned was such as to exclude the doctrine of the assumption of risks. But as the Legislature, in a later section, has expressly provided that the employé shall not be held to have assumed the risks of his employment in any case where the violation by the common carrier of the statute enacted for the safety of employés contributed to the injury or death of such employé, it would seem that, as to defective machinery and the like, the defense of assumption of risks remains open except in the case provided for. This has been held by the Supreme Court of the United States, in construing the federal Employers' Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp, 1911, p. 1322]), which is quite similar to the act of the Legislature of Georgia of 1909 (Laws 1909, p. 160), codified in the sections already cited. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062. See, also, Barker v. Kansas City, etc., Ry. Co., 88 Kan. 767, 129 P. 1151, 43 L.R.A. (N. S.) 1121; Freeman v. Powell (Tex. Civ. App.) 144 S.W. 1033.
In Coley v. North Car. R. Co., 128 N.C. 534, 39 S.E. 43, 57 L.R.A. 817, the North Carolina employers' liability act was held to exclude the doctrine of assumption of risks arising from the negligence of the master in furnishing defective machinery or appliances. But that statute not only contained a general statement of a right by an employé of a railroad to recover...
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