Flournoy v. American Hat Mfg. Co.

94 S.E. 835, 21 Ga. App. 599, 1918 Ga. App. LEXIS 420

• Court: Court of Appeals of Georgia
• Decided: January 21, 1918
• Docket: 9171
• Status: Published

Opinion

Harwell, J.

.(After stating the foregoing facts.) Conceding that the petition as amended shows negligence on the part of the master, in that the steps were worn and slick, and that no light was burning at the place where it was usual for the light to be, when the plaintiff started to descend the steps, do not the facts alleged show that she was fully aware of the danger, and that she would be, therefore, precluded from any recovery ? She had been working for the defendant, as she alleges, for three or four years, had to use these steps constantly, and must have known that they were worn and slick. She certainly had equal means with the master of knowing that fact, which is charged as negligence to the defendant company. When she emerged from the room upon the landing at the head of the steps, she must have seen immediately that no light was burning at the place where she alleges it usually burned. In the original petition she alleges that she had descended a step or two before she fell. The danger, if danger there was, from the absence of the usual light, was obvious to her before she started to descend, and she assumed the risk of those dangers, which were known and obvious. “Upon one who brings a suit against a master for injuries to a servant it is incumbent to show not only negligence on the part of the master, but due care on the part of the servant; and it must appear that the servant injured did not know and had not equal means of knowing all that which is charged as negligence to the master, and by the exercise of ordinary care could not have known thereof.” Ludd v. Wilkins, 118 Ga. 525, 526 (45 S. E. 429), and cases there cited, Civil Code (1910), § 3131; Holland v. Durham Coal & Coke Co., 131 Ga. 715 (63 S. E. 290); Attleton v. Bibb Mfg. Co., 5 Ga. App. 777 (63 S. E. 918); Jellico v. White, 11 Ga. App. 836 (76 S. E. 599). “No recovery can be had upon mere proof of negligence on the part of the master; but the plaintiff must .show, in addition to the exercise of due care on his part, that he was not aware of the danger, that his opportunities for knowing the existence of the danger were not equal to those of the master, and that in the exercise of ordinary care he could not himself have known of the danger.” Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (4) (86 S. E. 82), and citations. See also Williams v. Atlantic Coast Line Railroad Co., 18 Ga. App. 117 (89 S. E. 158); Stubbs v. Atlanta Cotton-Seed Oil Mills, 92 Ga. 495 (17 S. E. 746); Lowry v. Atlanta Joint Terminals, 145 Ga. 782 (89 S. E. 832). Under the facts shown by the allegations of the petition as amended, the court did not err in sustaining the demurrers and dismissing the petition.

Judgment affirmed.

Broyles, P. J., and Bloodworlh, J., concur.