Pierce v. Mills

• Decision Date: 05 October 1887
• Citation: 4 S.E. 381,79 Ga. 782
• Parties: Pierce v. Atlanta Cotton Mills.
• Court: Georgia Supreme Court

4 S.E. 381

79 Ga. 782

Pierce

v.Atlanta Cotton Mills.

Supreme Court of Georgia.

October 5, 1887.

1. NeOLIOENCE—contrusutort—CoDE Ga. S 2973.

Code Ga. § 2972, making defendant liable, although plaintiff may have contributed to the injiuy sustained, if the plaintiff could not by ordinary care have avoided the consequence of defendant's negligence, li, eld inapplicable where plaintiff claims full damages, and not as in case of contributory negligence.

2. Master and Seuvant—Negligence—Duty to Provide Safe Appliances.

In an action for damages, the court charged the jury that if there were two kinds of shuttle-guards in general use on looms, and skillful persons using either were divided in opinion as to the safest, defendant would not be liable for damages caused by reason of the use of either kind of such guards. Held, not error as a conclusion of fact by the court.'

Error from city court of Atlanta; Van Epps, Judge.

Action by plaintiff, Picn-ce, for damages alleged to have been sustained by her in conse(pience of defective shuttle-guards used by the Atlanta Cotton-Mills, defendant. Judgment for defendant, and plaintiff brings error. Code Ga. § 3036, referred to in the opinion, provides: "If the person injured is himself an employe of the company, and the damage was caused by another employe, and without fault or negligence on the part of the person injured, his employment by the company sliall be no bar to the recovery." And section 2972'is as follows: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover; but in other eases the defendant is not relieved, altheugh the plaintiff may in some way have contributed to the injury sustained."

Riobt. B. Trippe and Morris Brandon, for plaintiff in error. Hopkins & Glenn, for defendant in error.

'If the machinery furni.shed by a master to his servant is sound, well made, and kept in repair, ho will not bo liable for an accident occurring to an employe when the only ground alleged is that there is a better and safer kind used for the same purpose. Richards v. Rough, (Mich.) 18 N. W. Rep. 785; Sweeney v. Envelope Co., (N. Y.) 5 N. E. Ren. 358. A master is not bound to adopt the safest methed of working. Naylor v. Railway, (Wis.) 11 N. W. Rep. 24; Hickey v. Taaffe, (N. Y.) 12 N. E. Rep. 286. And his liability for injuries to his servant for defective arrangements is not that of an insurer or guarantor, if the defect was apparent to ordinary observation. The question is one of reasonable care and diligence. Ratterson v. Railway Co., (Mich.) 13 N. W. Rep. 508, and 18 N. W. Rep. 584; RaUroad Co. v. Wagner, (Kan.) 7 Pac. Rep. 204.

Beandford, J. The plaintiff in error brought her action for damages against the defendant in error to recover damages sustained by reason of a defect in the guard which protected the weaver's shuttle in its operation, alleging that she lost her eye in consequence of the defective guard. the guard did not cover or run entirely along the line of the shuttle, but had a section in the middle, which was open. A great deal of evidence was submitted by the parties as to whether that was a proper guard. The witnesses differed; some agreeing that no guard would be about as safe as a certain other guard, and some contending that one guard was about as good as another, and so on. A verdict was had for the defendant, and the plaintiff moved the court for a new trial, on various grounds, which was refused.

1. The exceptions are made mainly to the instructions of the court to the jury, which are embraced in the motion for a new trial. The first charge complained of is this: "If you believe, from the evidence, that two kinds of shuttle-guards were in general use on looms, and that ordinarily skillful people, using the two kinds, were divided in opinion and in their experience with them as to which was the safer, and you further believe that, in the use of ordinary and reasonable care and diligence, the defendant could have selected either of the guards for its looms, then the defendant would not be liable for damages caused by its use of such guards on its looms." It is alleged that this charge...