Opinion
37140.
DECIDED MAY 14, 1958.
Action for damages. Muscogee Superior Court. Before Judge Calhoun. January 31, 1958.
Ralph M. Holleman, E. G. Kimsey, Jr., for plaintiff in error.
Ray Owens, Joseph S. Ray, J. Walter Owens, contra.
1. In a suit based on the alleged failure of the defendant to provide a safe place to work, it is essential that the petition show that the alleged defect was the proximate cause of the plaintiff's injury.
2. The petition in the present case is fatally defective because the alleged defect was obvious to the plaintiff at the time the injury occurred.
DECIDED MAY 14, 1958.
Frank Coe filed a suit against Claude A. Hewett, and Anne Hewett, d/b/a Beddingcraft Sleep Products for injuries sustained while operating a machine in their manufacturing plant.
The petition alleged in part that: The defendant operated and now operates a business in the state and county under the trade name of Beddingcraft Sleep Products, which renovates, reworks and manufactures mattresses; that one of the machines and implements used in the operation is a ginning machine; that the machine is a box type machine about 4 by 6 feet wide and approximately 4 feet high; that the machine contains numerous small circular saws mounted upon a common axle or shaft, which shaft extends from one side of the machine to the other; that when in operation, cotton and cotton filling from old mattresses are placed in the machine by way of an opening at the top and fed through the area where the saws are turning for the purpose of chopping, sawing and fluffing the cotton into a usable condition; that on August 6, 1956, the plaintiff was an employee of the defendants, employed to operate the above named machine and was in the performance of his duty as an employee and servant of the defendants; that on said date, while operating the machine, the machine became clogged, stopped up and congested with cotton accumulating around the saws and axle of the machine, without any fault on the part of the petitioner; that the cotton in the machine started smoking as a result of the friction caused by the saws and axle turning against the cotton at a high rate of speed, all as a result of the defective machine, which fact was well known to the defendants, but unknown to the plaintiff; that the plaintiff, with the use of an improvised handle, attempted to lift the feeding platform and racks containing cotton from their contact with the saws; that while removing the feeding platform and racks from contact with the saws, the plaintiff's right hand was struck by one of the saws resulting in serious injury to his hand; that the machine was defective; that the defendants knew it was defective; and that they failed to disclose this fact to the plaintiff; that the plaintiff had no mechanical knowledge of the machine other than what he had been told; that the defendants had told him the machine was safe to operate and had told him to keep it running and operating at all times; that the defendants were guilty of the following acts of gross negligence, the same being the proximate cause of the plaintiff's injury: (1) in owning, keeping, maintaining and operating a faulty and defective machine; (2) in failing to inform the plaintiff that the machine was faulty and defective; (3) in telling the plaintiff that the machine was safe to operate.
The defendants filed a general demurrer to the petition. The judge sustained the demurrer and dismissed the petition and it is to this ruling exception is taken.
1. This being an action based on the alleged failure of the defendant to provide a safe place for the plaintiff to work, it is essential that the petition show that the alleged defect in the machine was the proximate cause of the injury. Vinson v. Willingham Cotton Mills, 2 Ga. App. 53 (4) ( 58 S.E. 413). The petition alleged that as a result of the machine being defective it became "clogged, stopped up and congested" and was smoking; the plaintiff attempted to lift the "feeding platform" with an improvised handle and in doing so his right hand was struck by one of the saws in the machine. While the petition does allege that the machine clogged and stopped up due to its being defective, there is no allegation that the plaintiff received his injury as a result of this defect. There being no allegation showing that the proximate cause of the plaintiff's injury was the defect in the machine, the petition failed to set forth a cause of action.
2. The petition is fatally defective for the further reason that the defective condition was obvious to the plaintiff at the time the injury occurred. Middle Ga. Atlantic Ry. Co. v. Barnett, 104 Ga. 582 (2) ( 30 S.E. 771). It is well settled that no recovery can be had for defects of which an employee has knowledge, and he must exercise ordinary care in detecting such defects. "As a limitation upon the right of an employee to recover for injuries resulting from defective machinery, appliances, or working grounds or places it is well settled that no recovery can be had for defects of which such employee has knowledge, and that he must exercise ordinary care and caution in detecting such defects; and hence the establishment of the rule that the servant not only assumes all risks ordinarily incident to the business in which he is engaged, but also all other open and visible risks, whether usually incident to the business or not. The servant is bound to see patent and obvious defects in appliances furnished him, and dangerous conditions of the premises upon which he is to work, which are open and visible. He must himself assume the risks and hazards which are open to observation, and is bound, to a certain extent at least, to exercise his own skill and judgment in discovering defects not concealed and in preventing injuries which may arise therefrom; he cannot blindly rely upon the care and skill of his master. The servant is presumed to know of defects which are obvious, and is chargeable with knowledge of such defects; and this knowledge may be inferred from evidence of his familiarity with the working place or grounds upon which he is required to work." Walker v. Atlanta West Point R. Co., 103 Ga. 820, 822 ( 30 S.E. 503).
In the present case when the machine stopped up and began smoking the plaintiff knew it was not operating properly, and he was at that time put on notice of its defective condition. If he had been injured at that instant there would be a different question, but here after knowledge of its defective condition he continued to operate the machine and for that reason the petition failed to set forth a cause of action. Wilder v. Miller, 128 Ga. 139 (2) ( 57 S.E. 309).
Judgment affirmed. Felton, C. J., and Nichols, J., concur.