Louisville & N.R. Co. v. Dunn

• Decision Date: 11 December 1917
• Docket Number: 9039.
• Citation: 94 S.E. 661,21 Ga.App. 379
• Parties: LOUISVILLE & N. R. CO. ET AL. v. DUNN.
• Court: Georgia Court of Appeals

94 S.E. 661

21 Ga.App. 379

LOUISVILLE & N. R. CO. ET AL. v. DUNN.

No. 9039.

Court of Appeals of Georgia, Second Division

December 11, 1917

Syllabus by the Court.

The general rule of law that it is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants does not apply to a case where the very work for which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety. The hazards thus arising as the work proceeds must be regarded as being the ordinary dangers of the employment and the servant necessarily assumes them. 3 Labatt's Master and Servant (2d Ed.) p. 3140, § 1177. Thus, where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable. 3 Labatt's Master and Servant (2d Ed.) p 2466,§ 924; Ludd v. Wilkins, 118 Ga. 525, 45 S.E 429; Hagins v. Southern Bell Tel. & Tel. Co., 134 Ga. 641, 68 S.E. 428, 137 Am.St.Rep. 270, 20 Ann.Cas. 248; Southern Railway Co. v. Taylor, 137 Ga. 704, 73 S.E 1055; Byrd v. Thompson, 146 Ga. 300, 91 S.E. 100; Holland v. Durham Coal & Coke Co., 131 Ga. 715, 63 S.E. 290; Robertson v. Merchants' & Miners' Trans. Co., 18 Ga.App. 568, 90 S.E. 104; Gulf, C. & S. Ry. Co. v. Jackson (8 C.C.A.) 65 F. 48, 12 C.C.A. 507.

In a suit by a servant for personal injuries arising from the negligence of the master in failing to comply with the duties imposed upon it by section 3130 of the Civil Code of 1910, it must appear that the master knew or ought to have known of the incompetency of the other servants, or of the defects or danger in the machinery supplied; and it must also appear that the injured servant did not know and did not have equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof. Civil Code 1910, § 3131.

In a suit brought by an employé of a common carrier by railroad against the company for personal injuries, he cannot recover if his injuries were caused by his own carelessness amounting to a failure to exercise ordinary care, or if by the exercise of ordinary care he could have avoided the consequences of the defendant's negligence. Civil Code 1910, §§ 2782, 4426.

Even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with such order, the servant be injured, he cannot recover of the master. Southern Railway Co. v. Taylor, supra; Hightower v. Southern Ry. Co., 146 Ga. 279, 91 S.E. 52, L.R.A. 1917C, 481; Southern Cotton Oil Co. v. Gladman, 1 Ga.App. 260, 58 S.E. 249 (6); Attleton v. Bibb Mfg. Co., 5 Ga.App. 777, 63 S.E. 918; Williams v. Atlantic Coast Line R. R. Co., 18 Ga.App. 117, 89 S.E. 158.

In an action by a servant against a master for alleged failure of duty by the latter in not giving to the former warning of a danger incident to his employment, if the danger was obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning to the servant. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (3); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712, 68 S.E. 483.

In a suit for personal injuries, under repeated rulings of this court and of the Supreme Court, while questions of negligence, including the question whether the plaintiff by the use of ordinary care could have avoided being injured, are for the jury to determine, yet, where the finding of the jury on such issues is not supported by any evidence, such finding should be set aside, and a new trial granted.

Error from Superior Court, Jones County; J. B. Park, Judge.

Suit by T. B. Dunn against the Louisville & Nashville Railroad Company and another. Verdict and judgment for plaintiff, and from the refusal to sanction a petition for certiorari, defendants bring error. Reversed.

Cumming & Harper, of Augusta, Hardeman, Jones, Park & Johnston and Harry S. Strozier, all of Macon, and E. T. Dumas, Jr., and R. N. Hardeman, both of Gray, for plaintiffs in error.

L. D. McGregor, of Warrenton, and Westmoreland, Anderson & Smith, of Atlanta, for defendant in error.

BROYLES P.J.

T. B. Dunn brought suit in the city court of Gray, Jones county, against the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company for personal injuries sustained by him. The first verdict in his favor was set aside on certiorari. On the second trial a verdict and judgment for the plaintiff were again rendered, and the defendants filed a petition for certiorari, which the judge of the superior court refused to sanction, and to that judgment the defendants excepted.

The undisputed material facts in the case are as follows: Dunn was an employé of the defendant railroad companies, and was a member of a bridge gang which was repairing a wagon bridge over the railroad track. He had had about five years' experience on a bridge gang. A new support, called a "bent," to this bridge having been erected, the foreman directed the members of his gang to cut down the old bent, which was rotten. The bent consisted of two upright posts and two leaning posts, the upright posts being on the outside, and the leaning posts on the inside and leaning towards each other. All four posts were mortised into a large timber on the ground, and were likewise mortised into a cap timber at the top. The entire bent was on one side of the railroad track. All of the posts were about 25 feet long and about 8X8 inches in size. The leaning posts were called "batter posts." The foreman ordered the batter posts to be cut down; and Goldman, an employé, got an ax and commenced to cut down one of the batter posts. At about the same time, according to some of the testimony, the foreman told Dunn to cut down the other batter post. Dunn got an ax, passed by Goldman, who was cutting down one of the posts, went to the other batter post, directly in range of the post which Goldman was cutting, and began to cut on his (Dunn's) post. After he had cut two or three licks Goldman's post fell over the way it was leaning, the top of it striking Dunn and causing his injuries. The batter posts were not tied at the top to the bridge superstructure while they were being cut out.

1. It is clear from the evidence that Dunn was employed for the express purpose of assisting in the repair of an unsafe structure, which was obviously dangerous work. The particular work in which he and his fellow workman were engaged at the time he was injured was the cutting down of the rotten batter posts. This was inherently and necessarily a dangerous occupation, and the undisputed evidence is that Dunn knew this as well as the master did, he himself testifying that:

"They were taking it [the bent] down because it was so badly decayed and rotten that it was not safe to stay there and support the bridge * * *

...