Butler v. Atlanta Buggy Co.

Hill, C. J. (After stating the foregoing facts.) The evidence, even when considered most favorably for the plaintiff, fails to show that he successfully carried the burden which the law imposed upon liim. It was incumbent upon him to prove, not only that the defendant was guilty of negligence as alleged in the petition, but that he himself was free from fault. The evidence leaves it doubtful whether the plaintiff’s injuries resulted in fact from the defective condition of the saw as described. His fellow servant, who testified as to the condition of the saw, said that “it was in about a's good condition as they generally ran it.” If this was true, its defective condition could not have furnished a basis of liability on the part of the defendant, in view of the fact that the plaintiff was an experienced workman, and had been for over two years familiar with the saw as it was generally used by him in his work. But, even conceding that the saw was in a defective condition, and that it was the duty of the defendant to have had it inspected and to have remedied these defects, yet these things alone would not have entitled the plaintiff to recover. The law raises an implied warranty on the part of the master that he will keep and maintain the instrumentalities with which his employees are required to work free from any hidden defects, so far as he knows or in the exercise of ordinary diligence can anticipate or discover. It also implies an agreement on the part of the servant to assume the risk of all dangers that are within his knowledge, or can be discovered by him in the exercise of ordinary diligence on his part. The obligation is mutual. The degree of diligence is the same, and, before a recovery can be had, the servant must show that the master violated his implied obligations, while he himself fully performed the obligation which the law imposed upon him. This principle is well settled and is universal, and this court, as well as the Supreme Court of Georgia, has made many decisions emphasizing the rule 179 of 'mutual obligation which the law imposes upon both the employer and the employee. Some of these decisions pertinent to the facts of the case sub judice are Brown v. Rome Foundry Co., 5 Ga. App. 143 (62 S. E. 720) ; Attleton v. Bibb Manufacturing Co., 5 Ga. App. 777 (63 S. E. 918); Flury v. Hightower Box & Tank Co., 132 Ga. 300 (64 S. E. 72); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (68 S. E. 483); White v. Kennon, 83 Ga. 343 (9 S. E. 1082) ; Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 197 (33 S. E. 961); Smalls v. Southern Ry. Co., 115 Ga. 137 (41 S. E. 492) ; Manchester Mfg. Go. v. Pope, 115 Ga. 542 (41 S. E. 1015) ; DeLay v. Southern Ry. Co., 115 Ga. 934 (42 S. E. 218); Worlds v. Georgia R. Co., 99 Ga. 283 (25 S. E. 646); Zipperer v. S. A. L. Ry., 129 Ga. 387 (58 S. E. 872). The whole law on the subject, however, is comprehensively and clearly stated in the two sections of the Civil Code of this State. Section 3130 of the Civil Code (1910) declares: “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. If there are latent defects in the machine^ or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he must give the servant warning in respect thereto.” Section 3131 declares: “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by the preceding section, it must appear that the master knew or ought to have known . . of the defects or danger in the machinery supplied; 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.” When we apply these sections of the code, which simply embody well-settled principles of law, to the facts proved by the plaintiff, even conceding that the master may have been negligent in furnishing to him a defective saw with which to do hid work, it is perfectly obvious that this defective condition was either actually or constructively known to the plaintiff. His own witness testified that he discovered the defective condition by a mere glance at the saw. The plaintiff was an experienced work 180 man. He had worked with this identical saw repeatedly. He had been working with it that very day. According to his testimony he did-actually notice that it “wobbled” and was not proceeding in its normal way. If his coemployee, by a glance, discovered that its teeth were deflected from their normal position, could not the plaintiff, when he was about to use it, and was actually using it, also have seen its defective condition, which he described, and which he says caused his injuries? Indeed, he must have seen it, because he fully described its condition, and testified that he did not see the saw for months after his injuries. His own evidence affirmatively'shows that he not only had an equal opportunity with the master to discover the defective condition of the saw, but had a better opportunity than the master to make this discovery. Learned counsel for the plaintiff insists that, as a general demurrer had been overruled, his right to recover, if he proved the allegations of his petition, was settled. But did he prove the allegations of his petition? The principal allegations of his petition, on proof of which alone he was entitled to recover, were that the saw was defective, that its defective condition was unknown to him, and that this condition could not have been known to him by the exercise of ordinary diligence and care. It was necessary for him to show these things, even after he had proved that the master was guilty of negligence in furnishing him a defective tool with which to work. But the evidence in his behalf utterly fails to show this. A faithful employee, who is injured in the zealous service of his master, is entitled to compensation for any injuries that he may receive, caused by his master’s negligence, and which could not have been avoided by him in the exercise of ordinary care and prudence; and this court will not be diligent to detect the negligence of a faithful and zealous servant. But where that rule of justice, to wit, the rule of mutual obligation, is clearly violated by the failure of the servant, either through recklessness or negligence, to avail himself of his senses, aided by his experience, in discovering defects in the instrumentalities with which he is working, and which are discoverable even by a glance of the eye, and can not possibly be hidden from the view of any one who looks at the. instrumentality in the light of day, the zeal and fidelity of the servant is not sufficient to overcome such manifest negligence. A careful study of the evidence for the plaintiff, giving to it every 181 reasonable inference that would support his claim to recover damages, leads us to the conclusion that the question,of his negligence, under well-settled principles of law, was not even issuable, and the judge properly awarded a nonsuit. Judgment affirmed.