McDaniel v. Acme Brewing Co. , 113 Ga. 80 ( 1901 )

Cobb, J.

“ The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master, and due care on his own part.” Georgia Railroad Co. v. Nelms, 83 Ga. 75; Brush Electric Co. v. Wells, 103 Ga. 515. Applying this principle to the facts of the present case, the .court properly awarded a nonsuit, for the reason that there was no direct evidence from which the jury could find that the plaintiff’s husband, who was a servant of the defendant, was in the exercise of due care at the time of his death; nor was there any proof of circumstances from which an inference to this effect could be legitimately drawn. The deceased was killed, in a room where he was alone, by the working of machinery; and there was, according to the evidence, nothing in the manner in which the machinery was, or could have been, operated which would throw any light upon the question as to whether he was in the exercise of due care. This being true, a nonsuit was properly awarded, notwithstanding the fact that during the progress of the trial the jury had been allowed, in the company of the judge and counsel in the case, to go to the scene of the homicide, and the judge had directed that the machinery should be put in operation in the presence of the jury.

Judgment affirmed.

All the Jiostices conctorring.