Opinion
33177.
DECIDED JANUARY 27, 1951.
Action for damages; from Macon Superior Court — Judge Harper. May 11, 1950.
W. F. Blanks, for plaintiff in error.
John S. Averill Jr., Jay, Garden Jay, contra.
The allegations of the petition failed to state a cause of action, and the trial court properly sustained the general demurrer and dismissed the petition.
DECIDED JANUARY 27, 1951.
A. O. Hill sued the Atlantic Coast Line Railroad for damages because of personal injuries received by him while in its employ. The defendant filed general and special demurrers to the petition as amended, and the court sustained the general demurrer and dismissed the action. The exception here is to that ruling. The petition, in substance, alleged: that the plaintiff was employed by the defendant as a coal craneman; that on the day he was injured the plaintiff was engaged in his regular duties operating the defendant's coal crane at Montezuma, Georgia; that, as a part of plaintiff's duties, he was to perform routine maintenance of the crane, such as lubrication and tightening of the clutches and other simple functions, which did not include an inquiry into the inner workings of the crane mechanism nor did his duties include "operational maintenance", and that for this reason the plaintiff was unfamiliar with the actual internal workings of the machinery of the crane; that, in the course of his operation of the crane, the plaintiff discovered that the so-called "traveling clutch" was loose and needed tightening; that it was necessary to tighten this clutch to keep it from slipping and thus rendering the crane inoperative, and that the job of making such adjustment to the clutch was one of the plaintiff's duties; that the plaintiff located and took in his hand a certain "homemade" wrench which had been provided by the defendant for the tightening of this clutch; that on the clutch were several slots or depressions in the metal, into which it was intended that the wrench be inserted to provide the traction necessary to move or adjust the clutch; that the plaintiff inserted the wrench into the slots and pulled upon the handle of the wrench in order to move the clutch and tighten it; but that, due to the difficulty in moving the clutch and to the defective condition of the wrench, the wrench failed to hold to the clutch and suddenly came free, thereby causing the plaintiff to be propelled backward by the force of his exerted strength against the boiler and the door thereof, sustaining certain described injuries. The plaintiff further alleged: that, due to the pain and agony of his injuries at the time when he fell, he had neither the physical strength nor presence of mind to examine or keep in his possession the wrench he had been attempting to use and, when he returned to work several weeks later, the wrench was gone and another had been substituted for it; that therefore he does not know whether the wrench broke or bent or spread or slipped, but does know that the wrench was properly fitted by him flushly into the slots on the clutch, and that it was at least a partly defective condition of the wrench which caused his injury; that the wrench was defective in that it was not sufficiently strong to bear, without slipping or bending or breaking in some manner, the pressure necessary to be placed upon it in order to move the clutch, and was not of sufficient length to allow its user to gain sufficient leverage to move the clutch without undue exertion; that the clutch which the plaintiff was seeking to adjust was a part of the crane which had been furnished by the defendant some two years prior to this injury, and neither it nor the crane had been periodically inspected by the defendant, nor had the traveling clutch been maintained by the defendant in an ordinarily mobile condition, and consequently at the time here involved the clutch was very difficult to move, requiring any person adjusting it to use an amount of pressure upon the handle of the wrench entirely unreasonable in relation to that which would have been necessary had said clutch been properly adjusted; that the actual condition of the crane and clutch, other than what was visible to the naked eye, and the reason why the clutch was not readily mobile are unknown to the plaintiff, he not being a machinist and having no duty to perform operational maintenance, but that the clutch could not be turned or adjusted in the normal manner by normal exertion because it simply would not move under normal pressure; and that, had the defendant performed on the crane and the clutch involved the necessary maintenance, it would not have been so difficult to move or adjust; that, furthermore, the defendant had failed to place over the said clutch a safety shield against which the person adjusting the clutch could have braced his body, and which would have limited the range over which he could have exerted pressure on the wrench, thus minimizing the possibility of injury to anyone adjusting the clutch; and that these three things — the furnishing of the defective wrench, the failure to inspect or maintain the crane over a period of two years, and the failure to provide a shield over the clutch — were acts of negligence proximately causing the plaintiff's injuries.
While we recognize the rule that except in plain and palpable cases questions of negligence and diligence and cause and proximate cause are for the jury to decide under proper instructions from the court, nevertheless, we think that the petition in this case shows that the sole proximate cause of the plaintiff's injury was his own act in attempting to exert a pressure on the handle of the wrench under circumstances which he knew or reasonably should have anticipated would result in injury to himself if he persisted.
Let us examine the bare allegation that the defendant was negligent in furnishing a wrench which was defective, unsuitable, or inadequate for the job, in the light of all the allegations of the petition. The allegations show that the plaintiff had been using the wrench intermittently for about two years. He alleges that he did not know that it was defective. From this we may infer that the wrench had not given him any trouble before and was suitable for the job for which it was intended, namely the adjustment of a normally functioning clutch. If the wrench was in fact defective, the plaintiff had ample opportunity to discover that fact in more than two years of use of the wrench, for the real test of the suitability of a simple tool, such as the wrench described in the petition, is its use under normal conditions in doing the job it was designed to perform. The defendant was not bound to furnish the plaintiff with a tool suitable for exerting on the clutch adjustment an unreasonable amount of force; and if the tool failed or proved unsuitable for exerting an unreasonable amount of force, that fact alone does not show that it was defective or unsuitable for performing its normal function. The allegation that it slipped, bent, spread, or gave way is the only allegation of fact offered in support of this conclusion. This is not sufficient. Therefore, the only permissible inference is that the wrench was not in fact defective for normal and proper use with a normally functioning clutch, and the conclusions drawn by the pleader in the petition, that it was, must fall for want of sufficient facts to support them.
Let us similarly examine the other alleged grounds of negligence, namely, those relating to the failure of the defendant to inspect the crane and maintain its component part, the clutch, in good working order, and to the failure to provide a shield over the clutches and against which the plaintiff might have braced his body. The allegations in this regard also show that the plaintiff had operated the crane since it had been furnished by the defendant more than two years prior to the date of the injury, and that he was familiar with its operation and with the adjustment of the clutches; and he should have known what was a reasonable force necessary to effect the adjustment of the clutches under normal conditions. Under such circumstances he was chargeable with notice of any defect in the machinery and any malfunctioning of its parts when the clutch adjustment became difficult or required an unreasonable amount of force. Being thus put on notice, the plaintiff in making the adjustment of the clutch nevertheless attempted to exert a force entirely unreasonable in relation to what was normally necessary to make the adjustment and in excess of what the wrench was designed to stand, and without taking any precautions to brace himself should the wrench or clutch mechanism suddenly give way and throw him off balance. Under such circumstances, his injury was not the result of the defendant's failure to inspect or maintain the machinery or to provide a shield around the clutches, but resulted solely and proximately from the negligence of the plaintiff in exerting an unreasonable pressure on the mechanism after he had had notice of the defects in it.
The plaintiff knew, or reasonably should have anticipated, when he sought to make the adjustment, and on applying excessive pressure to the wrench handle, that the wrench might suddenly come loose from the clutch, or — whatever the cause of the resistance of the clutch mechanism to the movement he sought to make — might suddenly give way under the pressure of the unreasonable force he sought to exert. That such would likely be the result of such a procedure, we think, is a matter of common knowledge. No reason is shown why the plaintiff could not have procured the services of the company mechanic or machinist charged with the duty of maintaining the crane and have ascertained the cause of the trouble. The petition does not show that the plaintiff acted under the prompting of an immediate emergency such as might have excused a hasty or negligent act on his part. He should have anticipated the results that ensued; and if he was injured as a result of his disregard of these obvious dangers or as a result of his failure to anticipate them, then his injuries proximately resulted from his own negligence and not from any negligence of the defendant. For these reasons the petition fails to set forth a cause of action, and the trial court did not err in sustaining the general demurrer and in dismissing the petition.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.