Willingham v. Rockdale Oil & Fertilizer Co.

Little, J. The plaintiff was nonsuited; and he complains of the ruling of the court, and assigns as error that the proof showed the defendant to be negligent in running its machinery while out of repair, and negligent in not stopping and putting the machinery in repair, and in running such machinery at the risk of its servants, when the defects were known to it. The plaintiff was in the employ of the defendant as night superintendent, and was injured by being caught in a belt while he was holding it and trying to keep it on, the machinery being in operation and the belt running while he was making this attempt. It was further in evidence that the plaintiff had worked with the defendant in the mill for a number of years and for a considerable length of time in the capacity of night superintendent of the mill, was acquainted with the machinery and its operation, and had charge of operating and directing it at night; that previous to his being hurt, the belt had run off, that he had cut, sewed and placed it in position again, and seeing that it was about to run off again, he “soaped” it and was endeavoring to hold it on when he was injured. Our Civil Code, § 2612, declares, that a servant assumes the ordinary risk of his employment, and is bound to exercise his [715] own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duty of furnishing his employees with machinery reasonably safe for persons who operate it with ordinary care and diligence (Civil Code, §2611), it must appear that the master knew or ought to have known of the defects or danger in the machinery; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof. These provisions of the code would seem to dispose of the case. The injured employee had been acquainted with the machinery for years, according to the evidence. More than that, at the very time of the injury, he was endeavoring to counteract a defect in its operation in a very hazardous manner, adopted without suggestion from the master or any one else, and one which no prudent man ought to have undertaken. He was injured, not in consequence of any defect in the machinery, but as the direct result of his imprudent and incautious act. As a rule, an employee can not recover from his master for injuries sustained when he himself was at fault; and we know of no law or precedent and no principle of justice- which would authorize a recovery when such employee was injured as a result of a rash and negligent act, not sanctioned by the master, and which exposed the employee to great risk and danger. If the plaintiff, by the exercise of ordinary care, could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. Civil Code, § 3830. So that even if the master was negligent in the matter of furnishing safe machinery, this plaintiff could not recover. He could well have avoided the injury. The nonsuit was properly awarded. Hoyle v. Excelsior Co., 95 Ga. 34; 50 Am. R. 798; see also Bell v. W. & A. R. R., 70 Ga. 566; Nelling v. Industrial Co., 78 Ga. 260; 49 Mich. 466. Judgment affirmed. All the Justices concurring.