Moses v. Johnson

68 Ga. App. 131

• Court: Court of Appeals of Georgia
• Decided: October 9, 1942
• Docket: 29678
• Status: Published

Opinion

Felton, J.

1. Under the allegations of the petition it appears that the injured servant had at least opportunity equal to that of the master to discover the alleged defects in the machinery operated by the servant.

2. Since the master did not order the servant to continue to use the defective machinery, no promise on the part of the master to repair or replace the defective machinery would relieve the servant from the duty to exercise ordinary care for his own safety. Elliott v. Tifton Mill & Gin Co., 12 Ga. App. 498 (77 S. E. 667).

3. Plaintiff assumed the risk of attempting to remedy the defect while the machinery was in operation. Donaldson v. Marsh Cypress Co., 9 Ga. App. 267 (70 S. E. 1121).

4. That the plaintiff was doing the work of two men is immaterial, he having assented thereto. Richmond & Danville R. Co. v. Mitchell, 92 Ga. 77 (3) (18 S. E. 290).

The court did not err in sustaining the general demurrer and in dismissing the action.

Judgment affirmed.

Stephens, P. J., and Sutton, J., concwr. Charles Emory Smith, for plaintiff. Rupert A. Brown, for defendant.