Atlantic Coast Line Railroad v. Gray , 30 Ga. App. 347 ( 1923 )

Broyles, C. J.

(After stating the foregoing facts.) The Supreme Court of Alabama, in construing the statute above quoted, and upon which this case is based, holds that the duty upon the master to furnish a servant a safe place in which to work does not apply where the prosecution of the work itself makes the place a dangerous one. See Sloss-Sheffield Steel & Iron Co. v. Terry, 191 Ala. 476 (6) (67 So. 678), where it is held: “Where the condition from which injury is alleged to have resulted to a servant, was the immediate product of the progress of the work in which the servant was properly engaged, such condition did not constitute a defect "within subdivision 1, section 3910, Code 1907.” And in Langhorne v. Simington, 188 Ala. 337 (3) (67 So. 85), it was held: “Where the prosecution of the work itself makes the place and creates its dangers, the rule requiring the employer to provide his employees with a safe place to work is without application.” In the instant case the petition clearly shows that the dangerous condition of the place where the plaintiff was working was caused “ by the prosecution of. the work itself.”

Moreover, the petition, construed, as it must be, most strongly against the plaintiff, shows that the injury sued for was caused by the plaintiff striking his foot against a spike which he himself, and other members of his gang, had carelessly and negligently left standing in a cross-tie after they had removed the identical rail which he was carrying when injured, and that the spike was left standing at a sufficient height above the surface of the cross-tie to have been easily discovered by any one having ordinary eyesight and intelligence, and that the plaintiff was possessed of both. It is not even alleged that the plaintiff did not see the spike or did not know that it was standing in the tie at the time of his injury. Indeed, as the spike was. left standing by the plaintiff himself, it is obvious that he must have known of its existence and location, and that by the exercise of the slightest care he could have stepped around it and avoided being injured. “A servant is expected to exercise some degree of intelligence, and the instinct of self-preservation, and is held to assume all injuries connected with his employment against which he may protect himself by the exercise of ordinary care.” Woodward Iron Co. v. Marbut, 183 Ala. 310 (3) (62 So. 804). The master, when he commanded the plaintiff to remove the rail from the track, had the right to assume that he was an ordinarily prudent man and would not in executing the command walk into an obvious danger. “ Where the peril to an employee was one which he might readily avoid while executing an order, and was obvious, the employer could assume that the employee would discover the peril and avoid it; hence, such an order could not be said to have been negligently given within the terms of subdivision 3, section 3910, Code 1907.” Woodward Iron Co. v. Wade, 192 Ala. 651 (2) (68 So. 1008).

From what has been said, and under the particular facts of the case, it follows that the defendant was not liable, under any provision of the Alabama statute; for the injuries sued for. The court, therefore, erred in overruling the general demurrer to the petition.

Judgment reversed.

Luke and Blood-worth, JJ., concur.