Southern Bell Telephone & Telegraph Co. v. Starnes , 122 Ga. 602 ( 1905 )

Cobb, J.

It.is to be observed that the petition nowhere alleges that the defendant had actual knowledge of the defective condition of the cross-arm, but alleges simply that by reason of the facts set out it ought to have known of it, and was negligent in not discovering its defective condition. The allegation that the ■defendant knew or ought to have known will be construed most .strongly against the plaintiff, to mean simply that it was the •defendant’s duty to know. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (6). An averment that the defendant had been notified of the defective condition of the poles and cross-arms in the town where the plaintiff was employed to work is not equivalent to an •allegation that it knew of the defect in the particular cross-arm which caused the injury. We have no difficulty in reaching the •conclusion that the court erred in overruling the general demurrer. The code provides that in suits by a servant against a master' for injuries received from the use of defective machinery, “it must appear that the servant injured did not know and had not -equal means of knowing such fact, and by the dxereise of ordinary care could not have known thereof.” Civil Code, § 2612. The .code also provides that “if there are latent defects in ma-chinery, or dangers incident to an employment, unknown to the servant, of which the master knows, or ought to know, he must give the servant warning in respect thereto.” Civil Code, § 2611. The plaintiff evidently seeks by his allegations to bring himself within this 'rule. But, as before observed, he does not allege that the defendant had actual knowledge of the defective condition of the cross-arm. If this had been alleged, the defect being a latent ■one, it would clearly have been the duty of the master to give the servant warning. In its last analysis, the'petition simply means ■that on account of. the long time that this defect had existed, and on account of the further fact that the defendant had been warned of the defective condition of its poles, cross-arms, etc., in the town in which the plaintiff was hurt, it ought to have discovered this particular defect. . But the plaintiff distinctly alleged that the defect was concealed by paint, and that he did not go upon the cross-arm until after “carefully examining and testing” it, such examination and test failing to result in a discovery of the defect. Under the allegations of the petition the defect was one which could not be discovered by a “ careful examination and test.” The plaintiff would never have known of it if the cross-arm had not broken; and if he could not discover it by a careful examination, there is no reason to suppose that the master could, have done so. Careful examination and test in such a case is all. that ordinary and reasonable care would require. The case is similar to that of Baxley v. Satilla Manufacturing Company, 114 Ga. 722. There the plaintiff was injured by the breaking of an' iron bolt which had in it a concealed defect. It was held that-the fact that the bolt broke was not sufficient- to remove, the presumption that the master had furnished a safe appliance, the-defect being of such a character that the master could not by the exercise of ordinary care have discovered it; and that the servant-having an equal means with the master of discovering the defect, he could not recover. See also Atlantic & Birmingham R. Co. v. Reynolds, 117 6a. 47, 53, where this rule of the code was applied, in a case where the plaintiff was injured by the falling of a telephone pole which he had climbed to repair the wires, and which he alleged fell because it was not placed a sufficient depth in the-ground. See also Hopkins’ Per. Inj. § 285 et seq. Without discussing the question further, we think it clear that the petition set forth no cause of action, and that the court erred in overruling the general demurrer.

Judgment reversed.

All the Justices concur.