Green v. Babcock Bros. Lumber Co

• Decision Date: 28 March 1908
• Citation: 130 Ga. 469,60 S.E. 1062
• Parties: GREEN . v. BABCOCK BROS. LUMBER CO.
• Court: Georgia Supreme Court

60 S.E. 1062

130 Ga. 469

GREEN .

v.BABCOCK BROS. LUMBER CO.

Supreme Court of Georgia.

March 28, 1908.

1. Master and Servant—Duty to Furnish Machinery Reasonably Safe—Machinery to Which Applicable.

Where a master employs a servant not to work with machinery, but to repair it when defective or out of order, the rule that the master is bound to use ordinary care to furnish, for his servant to work with, machinery equal in kind to that in general use, and reasonably safe for use by one exercising ordinary care, does not apply to the machinery to be repaired. Dartmouth Spinning Co. v. Achord, 84 Ga. 14, 10 S. E. 449, 6 L. R. A. 190.

2. Same—Warning—Latent Danger.

If a master sends a servant, employed to repair machinery, to repair a particular machine, and knows, or in the exercise of ordinary care should know, not only that the machine is out of repair, but that there is some latent danger attendant upon the service, and which is unknown to the servant, and could not be known to him by the use of ordinary care, and as to which he has not equal means of knowing with the master, the latter is under duty to warn the servant thereof. Civ. Code 1895, §§ 2611, 2612.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 310-316 1/2.]

3. Same—Actions—Pleading—Sufficiency.

Independently of the allegation quoted in the fourth headnote, the petition in the present case set out a cause of action which was sufficient to withstand a general demurrer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 809-847.]

4. Same.

An allegation that "the plaintiff charges that the defendant knew of the defective condition of the condenser, on account of the fact that for several days previous to the explosion the engine had not been properly working, and had by its actions given full warning that it was in a dangerous and defective condition, " is subject to special demurrer upon the ground that it is not alleged in what respect the engine had not been properly working, and because it is not alleged what actions of the engine gave warning that it was in a dangerous and defective condition.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 816-836.]

5. Same.

The other grounds of special demurrer were without merit.

(Syllabus by the Court.)

Error from Superior Court, Miller County; W. C. Worrill, Judge.

Action by M. L. Green against the Babcock Bros. Lumber Company. Judgment for defendant, and plaintiff brings error. Reversed.

Pottle & Glessner and B. B. Lane, for plaintiff in error.

Russell & Hawes, for defendant in error.

ATKINSON, J. 1-2. The first and second headnotes, without further elaboration, sufficiently state the general rules of law applicable to this case.

3. The action was by a widow for damages resulting from the death of her husband, caused by the explosion of a cylinder attached to a steam engine which he was employed to inspect and repair; it being contended that latent dangers existed in connection with the service to be performed, which were known by the defendant, or by the exercise of ordinary care could have been known by the defendant, and which were not known to the plaintiff's husband, and were not discoverable by him in the exercise of ordinary care, and which he did not have equal means with the master of discovering, and that the master did not warn him of the existence thereof. The suit was dismissed on demurrer, and error is assigned upon the judgment of the court. The petition alleged, among other things, substantially the following: The engine was equipped with a condenser, oil cup, and lubricator, and, when they were in proper working order, steam would go from the pipe to the condenser and be condensed into water, and this water would go into the lubricator from the top, while oil from the oil cup passed into it from the bottom. When the lubricator was filled with water, the oil, being lighter, rose to the top, and thence passed through a pipe to the engine, and thus lubricated the piston rod and engine. The lubricator was in the shape of a cylinder, made of glass, through which the oil could be seen rising to the top when the...