Pelham Mfg. Co. v. Powell
| Decision Date | 15 June 1909 |
| Docket Number | 1,636. |
| Citation | 64 S.E. 1116,6 Ga.App. 308 |
| Parties | PELHAM MFG. CO. v. POWELL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Actionable negligence by the master, with reference to his servant is the failure to exercise ordinary care to provide a reasonably safe place to work and reasonably safe appliances with which to work, and the failure to exercise ordinary care to keep the place and appliances in a reasonably safe condition.
[Ed Note.-For other cases, see Master and Servant, Cent. Dig. §§ 171-184; Dec. Dig. § 101. [*]]
A charge which fails to quality the care required to be exercised by the master as that of "ordinary care," or to qualify the condition of the place and appliance furnished by the master as that of "reasonable safety," but instructs the jury without qualification that "the master is charged with the necessity of furnishing such machinery as will be safe," incorrectly states the rule of law defining the master's duty, and in effect makes him an insurer of the servant's safety.
[Ed Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1148-1161; Dec. Dig. § 293. [*]]
The vice of a wrong rule in a charge is not extracted by the fact that the right rule is also given, because it is impossible to tell which rule the jury accepted. Especially is this true where the charge makes a concrete application of the wrong rule to the issuable facts and states the right rule as an abstract proposition of law.
[Ed Note.-For other cases, see Trial, Cent. Dig. §§ 705-718; Dec Dig. § 296. [*]]
Where an erroneous instruction is given on a material issue, the error is not rendered harmless by a subsequent statement of the judge that he had given the correct rule in another part of his charge. He must make it plain and clear to the jury that the first instruction was incorrect and is expressly retracted, and that the subsequent statement was correct and is substituted for the incorrect one; and it must appear, therefore, that the jury could not have been misled or confused by the two inconsistent statements.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-718; Dec. Dig. § 296. [*]]
Grounds of a motion for a new trial which expressly allege that extracts from a charge are erroneous because they contain incorrect statements of the law applicable to the facts in issue, and were confusing, misleading, and prejudicial, are sufficient to raise the question of the legal correctness of such statements; and if such extracts are incorrect statements of the law, they will be considered in connection with the evidence for the purpose of ascertaining whether the movant has been injured by the giving of such incorrect instructions.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016, 4038-4046; Dec. Dig. §§ 730, 1031. [*]]
Error from City Court of Camilla; J. H. Scaife, Judge.
Action by Z. L. Powell, by next friend, against the Pelham Manufacturing Company. Judgment for plaintiff, and defendant brings error. Reversed.
Jesse W. Walters & Sons, J. J. Hill, and Payne, Little & Jones, for plaintiff in error.
Bennett & Cox and Pope & Bennett, for defendant in error.
This was a suit by a servant against his master to recover damages for personal injuries caused by the negligence of the master in the use and maintenance of inferior and defective machinery. Negligence was also alleged in the failure of the master to instruct the servant, who was a minor and inexperienced, of the dangerous character of the machinery and in its safe and proper use. The view we entertain of certain instructions to the jury on the law of the case, which are specially excepted to, makes unnecessary any detailed statement of the issues made by the pleadings and the evidence. A general statement of the evidence will be sufficient to illustrate the questions of law involved. The master was a corporation engaged in the manufacture of cotton goods. The servant was a boy about 17 years of age. He had had some experience as an operative in a cotton mill, but, according to his testimony, none in the particular work he was called upon by the master to do at the time of his injury. When he was injured he was engaged in cleaning the fronts of the card machines, by picking and removing with his hands the cotton lint and fibers which had gathered on the shelves below the doors of the machines and on the scavenger rollers. In this manner he had successfully cleaned 14 of the machines, and when he came to the fifteenth machine he discovered that the cotton had accumulated on the shelf below the door to such an extent as to prevent him from discovering that the door which opened into the chamber or case where the revolving cylinders were inclosed, and which was intended to remain closed as a protection from the danger incident to the operation of the machine, had fallen down from its position; and being ignorant of this fact, as well as the consequent danger, due to his want of experience and instructions, he put his right hand out to remove the accumulation of cotton, and it went through the open door space, came in contact with the revolving cylinder, and was so mangled as to necessitate amputation. The evidence in his behalf proved that the hinges or latches to the door, which had fallen, and which were intended to keep it in its place, had become defective by wear and tear, and were for this reason wholly insufficient for the purpose, as the door, with its hinges or latches in that condition, would fall from its position by the vibration of the machinery. It was also alleged that the machine in question was of an inferior and dangerous character, not equal to such as was in general use in cotton mills, and that in this respect the defendant was negligent. All the allegations of negligence were specifically denied. The evidence, considered as a whole on the various issues of negligence, was in conflict, the question of liability under the law applicable thereto was not free from doubt, and a verdict either way would not have been without support. This condition of equilibrium in the evidence makes any error of law presumptively prejudicial.
We have given the case the most careful study, and we have concluded that the court committed material and prejudicial error in his instructions to the jury, as shown by the excerpts objected to, on the rule of law declaratory of the master's duty to his servants. The excerpts from the charge, and the charge as a whole, require of the master a greater degree of diligence than that imposed by law. The jury was instructed, in effect, that the law made the master an insurer of his servant's safety; that his duty of diligence was absolute and unqualified, both as to instrumentalities and inspection; that he was bound to furnish and maintain safe places and safe appliances. Of course, this is not the correct rule of law, in Georgia or elsewhere. "The limit of the master's duty to his servant regarding places and appliances is to exercise ordinary care, having regard to the hazards of the service, to provide the servant with reasonably safe working places, machinery, tools and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair." Armour & Co. v. Russell (C.C.A.) 6 L.R.A. (N. S.) 602, note. This states the law tersely and comprehensively. Civ. Code 1895, § 2611, embodies the same rule, and there are numerous decisions of this court and the Supreme Court to the same effect. The master does not insure or guarantee that the place or appliance furnished to his servant is even reasonably safe. He is required to exercise ordinary care to have them...
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