Hubbard v. Macon Ry. & Light Co
| Decision Date | 23 November 1908 |
| Docket Number | (No. 1,322.) |
| Court | Georgia Court of Appeals |
| Parties | HUBBARD. v. MACON RY. & LIGHT CO. |
In a case where an employe is hurt by steam from a stationary engine in the power plant of an electric street railway company blowing through a leaky valve in the lubricator of a pump connected with the engine, while he was attempting to oil the pump, section 2321, Civ. Code 1895, so far as it relates to the presumption of negligence, is not applicable.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 265.*]
Except where the injured employe is an inspector, the master's means of knowledge of latent defects in the machinery furnished are primarily to be considered as greater than those of the servant.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 217.*]
The duty of inspecting for defects which would not be disclosed by superficial observation is not primarily imposed upon a servant employed to operate a machine, or to see that it is operated.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 217.*]
The plaintiff clearly proved by circumstantial evidence that he was injured by a latent defect in the machine he was operating. The master's negligence and his own diligence were issuable; and the court erred in granting a nonsuit.
[Ed. Note.—For other cases see Master and Servant, Cent. Dig. § 1017; Dec. Dig. § 286.*]
(Syllabus by the Court.)
Error from City Court of Macon; Robt. Hodges, Judge.
Action by W. J. Hubbard against the Macon Railway & Light Company. Judgment for defendant, and plaintiff brings error Reversed.
Hubbard was employed by the street railway company as assistant engineer, and at the time his cause of action arose he was acting as engineer. His duties related to the operation of a stationary engine in the power plant of the defendant company. A part of the machinery was a pump to which was attached a lubricator. It became Hubbard's duty to oil it. In his petition he alleges that, as he opened the cap in the ordinary manner to pour in the oil, steam, water and hot oil spurted forth, scalding his face and burning out one of his ear drums; that this was occasioned by the fact that the valve in the lubricator which should have held the steam back was defective and leaked. The trial resulted in a nonsuit, to which Hubbard excepts.
Napier & Maynard, for plaintiff in error.
Roland Ellis, for defendant in error.
POWELL, J. (after stating the facts as above). 1. The plaintiff contends that this is a case to which section 2321 of the Civil Code of 1895, which raises a presumption of negligence against railroad companies when damage is done "by the running of the locomotive or cars or other machinery, " is applicable. Considering the origin of the rule, we do not think so. Atlanta Ry. Co. v. Johnson, 120 Ga. 908, 48 S. E. 389; Ga. R. Co. v. Nelms, 83 Ga. 70, 9 S. E. 1049, 20 Am. St. Rep. 308; Savh. Ry. Co. v. Flaherty, 110 Ga. 335, 35 S. E. 677. Compare and examine on the common-law rule of which the Georgia rule is a declaration and an extension the following cases and notes thereto: Farish v. Reigle, 11 Grat. (Va.) 697, 62 Am. Dec. 666; Smith v. St. Paul Ry. Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550; Memphis Co. v. McCool, 83 Ind. 392, 43 Am. Rep. 71.
2. We think, however, the court erred in awarding a nonsuit. The master in employing this servant and in putting him to work at this machine by implication of law warranted to him that the machine contained no latent defect undisclosed, so far as the master knew or by reasonable care could discover, and that he would use reasonable care to keep it in that condition; hence it became the master's nondelegable duty to use ordinary care to see that the machine remained free from such defects, and to have reasonable inspections made to prevent them from arising. Brown v. Rome Machine Works, 5 Ga. App. ——, 62 S. E. 720. It is likewise elementary that, if the servant knew, or by reasonable diligence could have known, of the defect, he is conclusively presumed to have assumed the risk of injury from it. The defect in the present case was latent. It was not discoverable by superficial observation. The servant did not know of the defect in the valve; and, since he also made it appear from the proof that the pump was not usually run while he was on duty, he gave a reasonable explanation as to why he had not discovered the defect "As a gen eral rule, a servant is under no obligation to inspect the appliances about which he works, or that part of the plant by which his safety may be affected, for the purpose of discovering concealed dangers which would not be disclosed by superficial observation." Southern Cotton Oil Co. v. Dukes, 121 Ga. 787 (2), 49 S. E. 788; Duke v. Bibb Mfg. Co., 120 Ga. 1074, 48 S. E. 408; Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 262, 58 S. E. 249. The duty of inspecting for defects, however, is one of the absolute duties of the master. Therefore primarily the servant's means of knowledge of latent defects are not to be considered as equal to those of the master.
3. The exception to this rule arises when the injured servant himself is employed as an inspector. Lucas v. Southern Ry. Co., 1 Ga. App. 810, 57 S. E....
To continue reading
Request your trial