Texas Co. v. Hearn

Bloodworth, J. (After stating the foregoing facts.) That the-deceased ’was only 19 years old when the burning which resulted in his death took place can not avail the plaintiff. The petition distinctly alleges that he was “of fair education and training.” In Skipper v. Southern Cotton Oil Co., 120 Ga. 942 (48 S.’E. 360), Mr. Justice Lamar said: “The petition stresses the fact that the plaintiff was a minor and inexperienced; but that he was only nineteen years of age was immaterial. The case is to be treated as though he had attained majority; for there is no suggestion that he was not chargeable with the duty of using due care, nor that he was incapable of appreciating the danger of stepping into the midst of moving machinery.” As illustrating the principle above announced see Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (94 S. E. 821); Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (2) (58 S. E. 413); Wilder v. Miller, 128 Ga. 139 (57 S. E. 309); Evans v. Josephine Mills, 119 Ga. 448, (6) (46 S. E. 674); Cen [411] tral Railroad Co. v. Phillips, 91 Ga. 526 (2) (17 S. E. 952); Central Railroad &c. Co. v. Rylee, 87 Ga. 491 (2) (13 S. E. 584, 13 L. R. A. 634); Sims v. East & West Railroad Co., 84 Ga. 152 (10 S. E. 543, 20 Am. St. R. 352); s. c. 80 Ga. 807 (6 S. E. 595). 2. From the foregoing statement of facts it will be seen that the petition alleges that the defendant was negligent because the deceased was low of stature and had been furnished with an auto-truck too high for him to remove the cans of gasoline therefrom without tilting them, and that some of the cans had defective tops which allowed the gasoline to spill when the cans were tilted. It does not appear from the petition that the truck and cans were not equal in kind to those in general use and reasonably safe for all persons who operated them with ordinary care and diligence, and there is no allegation that the servant made complaint to the master in reference thereto, nor is there any charge that there were any latent defects in the truck or the cans. The plaintiff by his petition seems to attempt tc place this case in a special class because the deceased was “low of stature.” From the very character of the complaint as to the defects of the truck and the cans, these defects were patent and obvious to the deceased. It also appears from the declaration that the servant for nearly four months had been using the truck and cans, and his opportunity of knowing of “the defects or danger in the machinery supplied” was equal, if not superior, to that of the master. See Williams v. Atlantic Coast Line Railroad Co., 18 Ga. App. 120 (89 S. E. 158), cit.; and Beck v. Tumlin Co., 13 Ga. App. 618 (79 S. E. 857), and cit. Even if it be conceded that the truck and cans, as related to the low stature of the deceased, were dangerous because of the alleged deficiencies therein, the deceased, with full knowledge of these deficiencies, assumed the risk and continued voluntarily to use them, and the plaintiff would not be entitled to recover for any injury resulting solely from such use. It is apparent, from the allegations in the petition, that the saturation of the clothes of the deceased resulted from his own failure to perform with due care the work assigned him, and was not the .result of any negligent . act or omission of the defendant, and that the master is not liable for providing the truck and cans used by the deceased. “A master is not responsible in damages to his servant for injuries sustained by the latter while in the employment of the former, in consequence [412] of defects in a tool furnished by the master, which the servant was using at the time of the injury, when the defects were such that they were known to the servant, or could have, been'known by the exercise of ordinary care on his part.” Banks v. Scofield’s Sons Co., 126 Ga. 667 (55 S. E. 939). “The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part.” McDaniel v. Acme Brewing Co., 113 Ga. 80 (38 S. E. 404). See also Civil Code (1910), § 3131; Muscogee Mfg. Co. v. Butts, supra; Short v. Cherokee Mfg. Co., 3 Ga. App. 377 (59 S. E. 1115). 3., The petition alleges that the deceased had never handled gasoline until-he was employed by the defendant, “had no knowledge of the inflammable'nature of the fumes of gasoline,” and “had no knowledge of the dangers attending the handling of the same,” and that the defendant failed to warn him of the inflammable nature of gasoline, and failed to instruct him “of the dangers of permitting gasoline to get upon his person and clothing.” Generally it is the duty of the master to warn the servant of the dangers incident to his employment, yet this duty “does not embrace an obligation of a master to anticipate that the servant may perform his task improperly, and to warn him of an obvious danger resultant from such improper method of performing his task.” Howard v. Central of Georgia Ry. Co., 138 Ga. 537 (2) (75 S. E. 624). See Commercial Guano Co. v. Neather, 114 Ga. 416 (2) (40 S. E. 299). The saturation with gasoline of the clothes of the deceased was not incident to the proper performance of his work, but clearly resulted from an improper performance thereof, and was the causa sine qua non, the cause without Which the- burning 'could not have taken place. The proper performance of the duties of the deceased would not be attended by extraordinary hazard or damage. “The failure of the master to instruct the servant how to perform work which any person of ordinary intelligence can perform without instructions, and the performance of which is unattended by extraordinary hazard or danger, is not such a breach of his duty to instruct as will give a servant injured while performing the work a right of action for damages.” Howard v. Central of Georgia Railway Co., supra. It'follows from the decisions above quoted and cited that the defendant was under no legal duty to warn the deceased of the [413] danger resulting from the improper performance of his task. In addition to the above, the petition, shows that at the time his “clothing caught fire he was in the drug store of Dr. Evans at Gordon, Georgia, standing at the counter near a' cigar-lighter* which was burning a small flame,” and that “the fumes of gasoline from his clothing caught fire from a flame, and the fire was communicated to his gasoline-soaked clothing, and the burns therefrom were the cause of his death.” There is no allegation that he was in this drug store delivering gasoline, or that in the discharge of his duty it was necessary for him to be standing near the cigar-lighter from which the “fumes” of gasoline caught fire and which resulted in his death. See Kennedy v. Atlantic Coast Line R. Co., 9 Ga. App. 661 (72 S. E. 66); Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. 7. 322); Strange v. Wrightsville & Tennille R. Co., 133 Ga. 730 (66 S. E. 774); Central of Georgia Ry. Co. v. McWhorter, 115 Ga. 476 (42 S. E. 82); Whitton v. South Carolina & Georgia R. Co., 106 Ga. 7,96 (32 S. E. 857); Central Railroad & Banking Co. v. Chapman, 96 Ga. 769 (22 S. E. 273); Atlanta & Charlotte Air-Line Ry. v. Ray, 70 Ga. 674 (4). Taking into consideration all the allegations of the petition, we are convinced that the- death of Cline Hearn was not due to the failure of any duty due him by the defendant, or to any negligent performance of.any such duty, and that the court erred in overruling the demurrer to the petition. Judgment reversed. Broyles, P. J., and Stephens, J., concur.