Waldo v. Central of Georgia Railway Co.

75 S.E. 821, 11 Ga. App. 484, 1912 Ga. App. LEXIS 67

Opinion

Russell, J.

This being a suit by an employee’s widow, against the employer, for the death of the employee, alleging defects in the employer’s machinery which caused his injury, and it clearly appearing, by the undisputed evidence of the plaintiff’s witnesses, that the defect complained of was actually known to the employee, and that, notwithstanding this knowledge, he assumed the risk of the defect, a nonsuit was properly awarded. Civil Code (1910), § 3131. Under the evidence, the plaintiff’s husband not only had the best opportunity of knowing the perilous position that he occupied at the time he lost his life, and a better opportunity than the master had, but also, from the nature of his duties, as well as from his opportunity for knowing, he was charged with knowledge of the danger from the defect which caused his death. There is nothing in the evidence to show that this case falls'within the decision in King v. Seaboard Air-Line Railway, 1 Ga. App. 88 (2), 93 (58 S. E. 252). Judgment affirmed.

Decided September 24, 1912.

Action for damages; from city court of Savannah — Judge Davis Freeman. June 6, 1911.

Twiggs & Gazan, for plaintiff. H. W. Johnson, for defendant. Pottle, J., not presiding.