Southern States Portland Cement Co. v. Helms

Powell, J. 1. In the case of Cedartown Cotton & Export Co. v. Miles, ante, 79, 58 S. E. 289, this court undertook to discuss andio elaborate the form and nature of a petition for the recovery by a •servant against his master of damages for personal injuries received in the course of the employment. The petition in this case .•seems to come up to the standard there set. In fact, if the pleadeT in this case had had the opinion just referred to before him, he ■could hardly have followed it with greater accuracy. The nature oí The servant’s employment, of the instrumentality causing tire injury, and of the defect which was the immediate cause, as well as the relation existing between these things as bringing about an actionable wrong, are carefully and definitely set forth. Matters of fact are set forth as such, while those matters of which the court will take judicial notice áre pleaded as legal conclusion; which is unobjectionable. The petition states that the deceased was employed as an oiler, .and connects the employment with the injury, by alleging that in pursuance of the performance of his duty he was engaged at the time he was hurt, in oiling the defective pieces of the'machinerjc The duty of the' defendant to furnish reasonably safe machinery is alleged in general terms; and, as said before, this is allowable under the rules of good pleading. The instrumentality is definitely described, and the definiteness of description increases, as in-1 -deed it should, as it touches the questions of the relation of the instrumentality to the duties of.the servant, to the specific mode of the injury, to the exact hature of the defect, to the negligence of the master and the lack of contributory negligence on the part of The servant; for by alleging the presence of the journal and the oil lióles therein, it shows the relation of the instrumentality to the duties of the servant; by alleging the presence of a projecting set [314] screw capable of catching clothing, it shows the relation of the instrumentality to the exact mode of the injury; by alleging the presence of this projecting set-screw at a place where in the ordinary construction and arrangement of the machine it would not be expected to project, because of the groove into which it should fit snugly, it shows the exact nature of the defect; and from these same things the negligence of the master appears; and by showing the speed at which the shaft and collar revolved, it negatives the contributory negligence of the servant. The defect is set forth with certainty, and from the facts stated it appears that it was latent; also that it was the proximate cause of the injury. As to the element of the master’s knowledge, the allegation is “that the defendant knew or ought to have known of the defective condition of the machinery above described.” Taken in connection with the other allegations of the petition, this is sufficient. As was said in the Miles case, supra, “if constructive knowledge be charged to the master, and the facts stated in the petition make a case where by law the duty of knowing is imposed upon the master, the resulting legal conclusion ‘that he ought to have known’ is not subject to objection.” Among the absolute non-delegable duties of the master are those of furnishing reasonably safe machinery, and of making inspection for the discovery of defects in those instrumentalities within the range of which the servant is expected to come. Dennis v. Schofield Co., 1 Ga. App. 489, 57 S. E. 925; Moore v. Dublin Cotton Mills, 127 Ga. 610 (3), 56 S. E. 839; Southern Cotton Oil Co. v. Dukes, 121 Ga. 791, 49 S. E. 788; Babcock v. Johnson, 120 Ga. 1034 (6), 48 S. E. 438; McDonnell v. Central Ry. Co., 118 Ga. 86, 44 S. E. 840. Hence, by law, the master ought to know of such defects; and it therefore follows that, the preliminary facts necessary to raise the duty having been set forth in detail, the statement of the legal conclusion is unobjectionable. Pierce v. Seaboard Air-Line Ry., 122 Ga. 664, 50 S. E. 468. The servant’s lack of actual knowledge is not directly alleged, but this element is inferentially shown from the facts stated; and in the absence of a more specific demurrer, pointing out the fact that this is pleaded inferentially, and not directly, we shall hold the petition sufficient. “Demurrer, being a critic, should itself be free from imperfections.” Special demurrer must put its finger [315] upon the exact point of weakness. The allegations are: "That plaintiff’s husband had only been at work at the said place in the capacity of an oiler but a few days; and the said machinery being in motion night and day, he had no opportunity of knowing of the improper manner of construction; and that he had no notice given, him of it;” and "could not by ordinary diligence have discovered the defect and danger;” and this, in connection with the fact that the shaft revolved at the rate of two hundred revolutions per-minute, which would naturally render the defect ordinarily unobservable, makes a circumstantial case of lack of knowledge. As. the Supreme Court says, through Justice Cobb, in the McDonnell case, 118 Ga. 91, 44 S. E. 843: “Want of knowledge on the part of the servant as to the defects in the machinery may be shown by circumstances as well as by direct evidence. Of course, in a. case like the present, where the servant loses his life, it is impossible in a suit by his widow to show by direct evidence this want, of knowledge. If the circumstances are such that it can he reasonably inferred that the servant did not have knowledge, this inference from the facts sufficiently establishes want of knowledge.” As a nicety of pleading, it is better to allege the lack of actual knowledge directly, even though the proof be circumstantial-However, in the light of what we have just said, we hold that the-petition sufficiently alleges a lack both of actual and of constructive knowledge. As to the element of constructive knowledge, the statement in Southern Cotton Oil Co. v. Dukes, 121 Ga. 787, 40 S. E. 788, is pertinent: “As a general rule, a servant is under no obligation to inspect the appliances about which he works, or that part of the plant by which his safety may be affected, for the purpose of discovering concealed dangers which would not be disclosed by superficial observation.” See also Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 58 S. E. 249. Since in this case the servant met his death not from the obvious danger of the rapidly-revolving shaft, hut from the concealed danger of a projecting set-screw, the case is easily distinguishable from the case of Commercial Guano Co. v. Neather, 114 Ga. 416, 40 S. E. 299, and McDaniel v. Acme Brewing Co., 113 Ga. 80, 38 S. E. 404. It must be remembered too, in this case, that the projecting set-screw was located in a place where a servant relying upon the prudence of the master would not ordinarily anticipate [316] it. Indeed, while the construction of the machine seems to have necessitated the presence of a set-screw in this collar, yet since it was also necessary to oil the adjoining hearing, the maker of the machine, obviously anticipating the danger that would exist by leaving the head of the screw exposed, had arranged a groove in the collar, into which the set-screw might fit without protruding. The negligence consisted not in the use of a set-screw, but in leaving it protruding, instead of protecting it by placing it down within the groove. See, in this connection, Labatt, M. & S. § 77, and cases cited in the footnote. The objection that the petition does not allege that the machinery was not equal in kind to that in general use is not well taken. In the first place this fact does inferential^, if not absolutely, appear from the allegations made. Also, under the Civil Code, § 2611, the master is bound to exercise ordinary care “in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence.” Taken thus conjunctively, these two clauses are measurably accurate in stating the rule upon this subject. In cases involving the law of master and servant we must not forget, in applying the two sections of our Civil Code, §§ 2611 and 2612, that they are not statutory in origin; they are mere codifications of particular phases of the law as applied by the Supreme Court in certain reported cases; and for the most part rest on statements culled in these cases from Wood’s Law of Master and Servant. As we said in King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S. E. 252, codification has given them no element of exhaustiveness, but the whole law of master and servant exists just as it did before these sections appeared in our code; and there are many phases of this branch of the law not covered by these two code sections. We look to the general law as'limiting, explaining, and extending their meaning. The fact that the machinery furnished by the master is equal in kind to that in general use is a circumstance tending to ..show that he has exercised ordinary care in that respect; but after all, there is the further test that it must be reasonably safe for all persons who operate it with ordinary care. With the exceptions of some regrettable lack of unity in form and order of arrangement, a rhetorical rather than a substantial blemish, the petition is well drawn; as amended it .sets out a clear, [317] definite cause of action; and the court properly overruled the demurrer. 2. The amendment to the petition was properly allowed, over the objection that it introduced a new cause of action. King v. Seaboard Air-Line Ry., supra, and cases therein cited. Judgment affirmed.