Fulton Bakery Inc. v. Williams

Jenkins, P. J.

Under section 16 of the Georgia workmen’s compensation law, an employer who might be subject to the provisions of the act, but who elects not to operate thereunder, is deprived of the following defenses: (a) that the employee was negligent; (6) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risk of the injury. Thus, irrespective of whether or not the provision quoted would render the defendant liable even though the petition might show that the injury was caused by the negligence of the plaintiff (see Critchfield v. Aikin, 33 Ga. App. 668 (127 S. E. 816)), in the instant ease, as in the Critchfield case, the petition not only sets forth negligence on the part of the defendant in failing to comply with its duty to furnish the plaintiff with reasonably safe and suitable appliances for carrying on the work of his employment, but sets forth an additional act of negligence on the part of the employer in giving to the plaintiff a negligent command. Thus, under the application of the quoted provision of the statute, any negligence of the employer in continuing to operate the dangerous appliance or in complying with the negligent command of the master would not defeat a recovery. Even were the case to be determined irrespective of such provision of the workmen’s compensation act, since questions of proximate cause are peculiarly within the province of the jury to determine, it could not be said as a matter of law that the petition in the instant case shows on its face that the injury was brought about by the plaintiff’s own negligence. See, in this connection, Hood v. Atlantic Steel Co., 29 Ga. App. 457 (115 S. E. 917). Accordingly the court did not err in refusing to dismiss the petition on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.