Smith v. City of Rome
| Decision Date | 18 March 1915 |
| Docket Number | 5835. |
| Citation | 84 S.E. 734,16 Ga.App. 96 |
| Parties | SMITH v. CITY OF ROME. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An amendment to a petition should be allowed, where the facts added by it, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction. It is not then objectionable as adding a new and distinct cause of action. If there is substantial identity of wrong, there is substantial identity of cause of action.
The rule forbidding a recovery from his master by a servant who subjects himself to injury by doing something he knows is dangerous is not applicable to a convict whose movements are controlled and directed by a "boss" or guard having and exercising authority to compel the convict to obey his orders.
The fact that there is conflict between the testimony of the plaintiff and that of his witnesses is not a good ground for the granting of a nonsuit.
While a servant is under no duty to observe changes from gradual wear and tear of machinery, until they become obvious to any careful man, the master's duty is to discover such changes by constant inspection, and to repair them, and to warn the servant of their existence.
The evidence of the plaintiff was sufficient to have carried the case to the jury, and the granting of the nonsuit was error.
Error from City Court of Floyd; J. H. Reece, Judge.
Action by Frank Smith against the City of Rome. Judgment for defendant, and plaintiff brings error. Reversed.
Eubanks & Mebane, of Rome, for plaintiff in error.
Max Meyerhardt, of Rome, for defendant in error.
The plaintiff in error, Frank Smith, brought an action for damages against the city of Rome, averring in his petition that on November 6, 1912, while confined in the chain gang of the city, and compelled by the authorities to work in the rock quarry of the municipality, he was directed by the boss of the chain gang to do certain work, in common with two other convicts, in drilling holes in the rock, for blasting that he was compelled to hold a certain steel drill some 2 1/2 or 3 feet long, while the two other convicts struck upon the top of this drill with large hammers; and that while he was so engaged a small piece of steel was split off the top of the drill and flew into his left eye, destroying the sight thereof. He further alleged that the drill had become so battered and "spread" on the top as to be dangerous, that its condition was known to the authorities that it had been in this condition for some weeks, and that he did not have the right to refuse to use the drill. He alleged that the city authorities were negligent in compelling him to use the defective drill, and in compelling two other convicts to strike upon the end thereof when it was in this defective condition, thereby causing a piece of steel to chip off and strike him in the eye. He alleged that it was negligence in the city to compel him to use this drill when it was made of steel not sufficiently tempered, which caused it to become battered and flattened out on the end when struck with hammers. He alleged, also, that he used all care possible to be exercised in his peculiar condition, and that he could not object to holding the drill while the other two convicts struck upon it, when he was ordered to do so by his boss; if he had refused to obey, he would have been liable to receive severe punishment. Upon the trial of the case the plaintiff attempted to amend his petition by striking from paragraph 12, and line 3 thereof, the following, to wit "some 2 1/2 or 3 feet long," and inserting in lieu thereof the following:
"Your petitioner shows that he, with two other convicts, had already drilled a hole some 2 feet deep in said rock. He shows that in drilling holes in said rock at said quarry three drills were used. The first drill is some 2 1/2 feet long. The first drill had already been used, and said hole in said rock had already been drilled out to a depth of some 2 feet, and it became necessary to use the second drill, which was some 3 1/2 or 4 feet long. He shows that said second drill was in bad repair, and was dull, and was not filed or suited for use; that thereupon said boss aforesaid directed and commanded petitioner and said two other convicts to use the third drill, which said drill was some 5 1/2 or 6 feet long. He shows that said third drill was about 2 feet too long to drill the hole as it had been made by the said first drill, and that because of said length of said drill, when petitioner was holding and turning same in the drilling of said hole, the end of said drill, which said two convicts were striking, came up even with the eyes and face of petitioner; that if said boss had used a drill of the proper length the end thereof would have extended only to about the breast of petitioner when using same, and not at or near the eyes of petitioner. Petitioner shows that in drilling a hole in rock at a quarry the person turning said drill of necessity squats or sits on some object near the ground; that this is necessary in working and turning said drill, and petitioner was so doing in the proper discharge of his duties on said date. He shows that the person working and turning said drill never stands, but always assumes the condition [position?] aforesaid; that if the defendant through its agents had used on said date and at said time drill No. 2, as aforesaid, the end of same would not have extended up, at, or near the eyes of petitioner [[[but] the end of said drill would have been at and near the eyes [breast?] of petitioner. He shows that it was negligence in said city in using said third drill which was too long as aforesaid. (2) Petitioner shows that it was negligence in said city, through its officers and agents aforesaid, in compelling petitioner to work at said drill with two said convicts striking the end of said drill. (3) He shows that the position occupied by two said convicts is an important one; that only experienced technical and expert men can properly do the work which said men were doing; that a common and inexperienced laborer cannot properly perform said work in the striking of the end of said drill; that inexperienced and incapable and nonexpert men, such as the two convicts aforesaid were, cannot strike the end of a drill in drilling holes in a rock, because an inexperienced and common laborer cannot hit the end of a drill, and as a result of said striking by said incapable men the end of said drill had become battered as is set forth in petitioner's original declaration."
This amendment was disallowed. Plaintiff then offered to amend his petition by striking from paragraph 12, line 3, the words, "2 1/2 or 3 feet," and inserting the words "6 feet," so that the said description of the drill should read "about 6 feet long." This amendment, also, was disallowed, and the plaintiff assigns error upon the disallowance of each amendment. The plaintiff testified that upon the day above mentioned he was serving a sentence in the city chain gang; that he was under the direction of a "boss," one Marshall, who directed him where to work, with what tools and in what manner to perform his work; that he was allowed no freedom in the selection of his tools or his place of working; that upon the morning of the injury he was given all of his instructions by Marshall, the chain gang boss; that he stated to Marshall that he objected to turning a drill under those inexperienced or "green" men, but that Marshall made him go, and he went; that, by reason of the absence of one of the three drills usually employed in drilling the holes for blasting, he used the longest drill, one about six feet in length; that he "did not have the proper steel, the next following, to go into the hole at that time and had to use another steel"; and that while holding the final or longest drill, which was "frazzled," battered, and split down at the top, and while the two other convicts were striking it with hammers, a small piece of steel from the drill flew off and struck him in the left eye, knocking him over; that it cut a hole in the lid of his eye, and made a little wound on the ball of the eye.
He testified that he got out of the chain gang the next day, as his sentence of 30 days had expired; and thereafter his eye was treated by Dr. Smith, an eye specialist, until treatment became useless, the sight having been destroyed. The plaintiff further testified that:
The drill he was using was worn down, especially on the sides of the top, and that the edges of the top of the drill were battered and flattened out, and that "untrue hammering" made it that way; that steel always has a temper just the same as when it comes from the manufacturer, "I understood turning the drill, and I was the only one who had been there about 30 days who showed any experience about turning."...
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