Bell v. Western & Atlantic Railroad , 70 Ga. 566 ( 1883 )

Jackson, Chief Justice.

1. The question made is, was the non-suit properly awarded? And that depends on this other question, did the plaintiff make out a prima facie case entitling him to recover ? If he did not, a non-suit was legally awarded, although the question was one of negligence. Gassaway vs. The Georgia Southern Railroad, 69 Ga., 347.

2. Did he make out a prima facie case for recovery ? If in the case made by his own testimony he showed himself in fault, he did not make out a prima facie case. He showed himself in fault, if he knew of the dangerous character of the tool he used. Baker vs. Western and Atlantic Railroad Company, 68 Ga., 699. In the case at bar, he knew that the hand-car was defective. He called the attention of the section master to it himself, and both concurred in its not being entirely safe, but as requiring care in its use. The defect known to both was that one of the handles of the car was longer than the other. That plaintiff apprehended danger from it, is apparent from his calling attention to it, and that it was to be repaired at the company’s shops, a short distance off. As ruled in Baker vs. this same company, supra, knowledge of “ the dangerous condition of the tool or instrument,” coupled with the fact that the employé afterwards uses it, fatal to his recovery. That case controls this, on this point.

3. Nor does it vary the case that “ the employé knowingly undertakes to use a dangerously defective tool under the immediate command of a superior employé,” Baker vs. W. & A. Railroad, supra. So that the direction or command of the section-master does not relieve the plaintiff’s case from this insurmountable fault in himself. See Wood’s Master and Servant, sec. 366, 377; 55 Ga., 133, 279; 58 Ib., 485; 50 Ib., 465; 56 Ib., 586; 60 Ib., 119; 63 Ib., 173.

Judgment affirmed.