Hightower v. Southern Railway Co. , 146 Ga. 279 ( 1916 )

Gilbert, J.

(After stating the foregoing facts.)

1. It is immaterial whether the defendant was engaged in interstate or intrastate commerce; as the rule of law which requires a servant to assume the ordinary risks of his employment, and makes it his legal duty to exercise his own skill and diligence to protect himself, applies in both cases. Emanuel v. Georgia & Florida Ry. Co., 142 Ga. 543, 546 (83 S. E. 230); Roberts on Injuries to Interstate Employees, 193, 198. The doctrine of assumption of risks is wiped out if the injury is due to a violation of any Federal statute enacted for the safety of employees. Southern Ry. Co. v. Crockett, 234 U. S. 725 (34 Sup. Ct. 897, 58 L. ed. 1564).

2. “In order' for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his .master, or his master’s representative, the servant must show that the order was a negligent one under the circumstances. If the order was negligent, and the servant knew of the peril of complying with it, or if he had equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then he can not recover for an injury received in complying with the order.” Southern Ry. Co. v. Taylor, 137 Ga. 704 (73 S. E. 1055); Foster v. Walker Roofing Co., 139 Ga. 431 (77 S. E. 581); Thomas v. Georgia Granite Co., 140 Ga. 459 (79 S. E. 130).

3. Where a servant is an adult of ordinary intelligence he can not relieve himself of the duty imposed by law in regard to assumption of risks on the ground that he is obeying orders of the master, or of a representative of the master, or because failure to obey will result in loss of employment. 4 Labatt’s Master and Servant, 4002; Leary v. Boston &c. Railroad Co., 139 Mass. 580 (2 N. E. 115, 52 Am. R. 733); Seaboard Air-Line Ry. v. Horton, 233 U. S. 492, 504 (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1). “Declining, he may lose employment; accepting, he assumes the risks attending the service, if he knows or has been properly warned of them. The servant is not under guardianship. He is a free man, at liberty to make such contracts as he will. That through stress of circumstances he consents to the orders of the master rather than be discharged from employment does not impose liability upon the master because of such demand, if he has otherwise performed the duty which the law imposes upon him with respect to the servant.” Reed v. Stockmeyer, 74 Fed. 186 (20 C. C. A. 381).

The- petition leaves us exceptionally free from doubt as to the respective knowledge of the master and servant. It alleges that the representative of the master “knew or should have known that it [the spike] was liable sometimes to rebound and injure the person driving it.” It also alleges that petitioner told defendant’s representative “that the old spikes were liable to jump out and rebound.” Thus the plaintiff in express terms charges himself with actual knowledge of the danger. To relieve himself of the assumption of this risk he alleges that the track foreman “directed him abruptly and peremptorily to use the old spike, and drive it in at once, as they had to get the track ready immediately for the fast train No. 16 to pass over; . . and that, being thus ordered abruptly to use the old spike, and knowing that if he refused to do so he would lose his job, and not having time to reflect,” he undertook to perform the services, and that injury resulted. Thus, with knowedge equal if not superior to that of defendant, he could not be relieved of his legal duty because the order was abrupt and peremptory, or because of a fear of losing his employment, or because he did not have time to reflect upon the matter. Precisely that thing happened which the plaintiff anticipated. In some respects the petition in the case of Emanuel v. Georgia & Florida Ry. Co., 142 Ga. supra, is similar to the petition in the present case. In the former case, however, the element of knowledge on the part of the servant was denied. In the decision of that.case will be found an interesting discussion of the basis of the doctrine of assumption of risks by an employee, and of various cases in which the doctrine has been applied.

Judgment affirmed.

All the Justices concur. Atkinson, J., concurs in the result, but not in all that is stated in the opinion.