Linenkohl v. Curington

Jenkins, P. J.

1. Assuming, under the rulings made in Bolden v. Central of Ga. Ry. Co., 130 Ga. 456 (60 S. E. 1047), and Morris v. Charleston &c. Ry. Co., 22 Ga. App. 186 (95 S. E. 748), that in the instant action by a servant against his masters for damages on account of injuries arising from the sudden collapse of a jack furnished to the plaintiff by the defendants, and which at the time of the accident was supporting an automobile on which the plaintiff was working, the defects alleged, so far as they consisted of the worn condition of the notches and the click or finger intended to fit into them and by which the jack was raised or lowered, were, under the evidence for the plaintiff, patent defects, which the servant had equal means with the masters of knowing and which were so obvious that the servant, who testified that he was a skilled mechanic, must in the exercise of ordinary care be held to have ascertained such defects and been aware of the attendant dangers upon a casual or superficial examination, it nevertheless appears that there was evidence for the plaintiff, supporting one of the averments of the petition, from which the jury would have been authorized to find that, despite such patent defects, the accident would not have occurred but for the alleged latent defect in the spring, the function of which was to force the click or finger into the notches of the jack so as to cause it to be held in position. In view of the allegations and proof of such latent defect, which might under the evidence have been found to have constituted the proximate cause of the injury, and in view of the plaintiff’s testimony that he had never before used this particular jack, it was error to withdraw from the consideration of the jury the question Of defendants’ negligence by granting a nonsuit in their favor. Williams v. Garbutt Lumber Co., 132 Ga. 221 (64 S. E. 65); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 (1 d), 315 (58 S. E. 524); Hubbard v. Macon Ry. & Lt. Co., 5 Ga. App. 223 (2), 224, 225 (62 S. E. 1018); Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324 (63 S. E. 244); Texas Co. v. Hearn, 23 Ga. App. 408 (2) (98 S. E. 419); Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225).

Decided April 19, 1924. Adhered to on rehearing, September 19, 1924. B. B. Feagin, J. F. Urquhart, for plaintiff. John B. L. Smith, Grady G. Harris, for defendants.

2. The court did not err in refusing to permit the plaintiff to prove declarations of a third person, not made in the presence of the defendants, by which it was sought to establish the defendants’ actual knowledge of the defective condition of the jack.^

Judgment reversed.

Stephens and Bell, JJ.,-concur.