2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 7 - Employment Generally; Employer's Liability
Article 2 - Employer's Liability for Injuries Generally
§ 34-7-23. Assumption of Risk by Employees; Requirements for Recovery of Damages

An employee assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself. In actions for injuries arising from the negligence of the employer in failing to comply with the duties imposed by Code Section 34-7-20, in order that the employee may recover, it must appear that the employer knew or ought to have known of the incompetency of the other employee or of the defects or danger in the machinery supplied; and it must also appear that the employee injured did not know and had not equal means of knowing such fact and by the exercise of ordinary care could not have known thereof.

(Civil Code 1895, § 2612; Civil Code 1910, § 3131; Code 1933, § 66-303; Ga. L. 1998, p. 128, § 34.)

- For article discussing origin and construction of Georgia provisions concerning master-servant relationship, see 14 Ga. L. Rev. 239 (1980).

ANALYSIS

• General Consideration
• Competency of Employees
• Safety of Place of Work
• Safety of Tools and Machinery

General Consideration

Definition of assumption of risk.

- Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servants' duty shall be at the servants' risk. Prather v. Richmond & D.R.R., 80 Ga. 427, 9 S.E. 530, 12 Am. St. R. 263 (1888); East Tennessee, V. & Ga. Ry. v. Reynolds, 93 Ga. 570, 20 S.E. 70 (1894); Worlds v. Georgia R.R., 99 Ga. 283, 25 S.E. 646 (1896); Plunkett v. Central of Ga. Ry., 105 Ga. 203, 30 S.E. 728 (1898).

As a general proposition, risk not caused by the master's negligent act or omission is assumed by the servant. Neary v. Georgia Pub. Serv. Co., 27 Ga. App. 238, 107 S.E. 893, cert. denied, 27 Ga. App. 836 (1921).

Employee does not ordinarily assume the risks of negligence of the employer. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

- Assumption of risk is predicated on knowledge, actual or constructive. A servant does not assume a risk about which the servant did not know or was not bound to know. Western & A.R.R. v. Morgan, 40 Ga. App. 611, 150 S.E. 850 (1929).

Employee is not presumed to have knowledge of hidden dangers requiring scientific knowledge to fully appreciate or to assume the risk thereof; unless the employee is warned or undertakes the work with such knowledge, the employee is not as a matter of law chargeable therewith. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

- In a suit by a servant for an injury arising from the negligence of the master in failing to furnish proper machinery or appliances or a safe place of work, the servant, to be entitled to recover, must show, among other things, that the servant did not have equal means with the master of knowing of the danger. Abercrombie v. Ivey, 59 Ga. App. 296, 200 S.E. 551 (1938).

- Whether the master is negligent in ordering a servant to work under dangerous and hazardous conditions may depend upon the capacity of the servant, due to the servant's age or otherwise, known to the master, to appreciate the danger of the conditions of the employment. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).

- When a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

When one enters the service of another, one impliedly assumes the usual and ordinary risks incident to the employment about which one is engaged; and in discharging the duties which one has undertaken to perform, one is bound to take notice of the ordinary and familiar laws of nature applicable to the subject to which one's employment relates. Hollingsworth v. Thomas, 148 Ga. App. 38, 250 S.E.2d 791 (1978).

Denial of the employer's motion for summary judgment was reversed because any alleged defects in the tractor tire or in removing the tire were known to the employee who attempted to remove the tire on the employee's own, spent hours attempting to do so, encountering difficulty, and used various methods and tools to remove the tire before the employee apparently finally did so using a tool not provided by the employer. Smith v. Found, 343 Ga. App. 816, 806 S.E.2d 287 (2017), cert. denied, No. S18C0534, 2018 Ga. LEXIS 374 (Ga. 2018).

- Obvious risks incident to employment are assumed by the servant in the servant's contract of employment. Howard v. Central of Ga. Ry., 138 Ga. 537, 75 S.E. 624 (1912); International Cotton Mills v. Carroll, 22 Ga. App. 26, 95 S.E. 472 (1918).

- Employee who sued employer for personal injuries should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and "eased" the clutch out, was dangerous and was not entitled to recover against an employer as a matter of law. Clayton v. Larisey, 190 Ga. App. 512, 379 S.E.2d 789 (1989).

- Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master's negligence. The expression "extraordinary risks" is generally used to describe the risk arising from the negligence of the master, and they are generally held not to be assumed unless known or obvious. Emanuel v. Georgia & F. Ry., 142 Ga. 543, 83 S.E. 230 (1914); Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939); Roberts v. Ethridge, 73 Ga. App. 400, 36 S.E.2d 883 (1946).

- Assumption of risk is a contractual incident of employment; being a contractual implication, it may be vitiated by express agreement or by a repugnant implication arising from particular transactions or communications between the parties. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224, 173 S.E.2d 416 (1970).

- Children under the age of 14 are not to be considered as having assumed the risks of ordinarily patent, obvious and known dangers not within the scope of their capacity to appreciate and avoid. Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10, 86 S.E. 260 (1915). See also King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S.E. 252 (1907).

Child under the age of 14 assumes only such ordinary risks of employment as the child is capable of appreciating and understanding, and a master who, personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the child of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger. The duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent person. Moore v. Ross, 41 Ga. App. 509, 153 S.E. 575 (1930).

Since a minor 12 years of age does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adults, an adult, in ordering a minor of that age as a servant to work at a place and under circumstances in which the minor is exposed to a danger which is patent and obvious to the employer, may in so employing the minor, be guilty of negligence. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).

- Fellow servant rule is a species of the assumption of risk rule. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

Fellow servant rule is an exception or departure from the respondeat superior rule. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

Cornerstone of the fellow servant rule is that a fellow employee's negligence must be the sole cause of an injury. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

Master must be free from negligence before application of the fellow servant doctrine comes into play. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

- A master must warn a servant of the conditions under which the servant is employed which are liable to engender disease, and must furnish suitable protection from such danger, provided that the master is in a position to have greater knowledge of the danger than the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

As to place, appliances, instrumentalities, and fellow servants, the law places upon the master a personal or positive, sometimes called nondelegable, duty to provide for the master's servant. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

- Prima facie, a servant does not assume risks which may be obviated by the master's exercise of reasonable care. King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S.E. 252 (1907).

- Liability of the master to a servant for negligence is strictly limited. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960).

- Master is charged with the knowledge of the usual and ordinary dangers to which the master is exposing the employees, and is bound to know the normal condition of the master's premises, and to know of the nature of the constituents and general characteristics of the substances used in the master's business, so that the master can give directions for the conduct thereof with ordinary safety to the master's servants performing the work with ordinary care, and particularly is the master chargeable with knowledge of risks ascertainable only through a knowledge of scientific facts which an uneducated person is not presumed to know; the doctrine that imputes this knowledge to the master is called the "assumption of skill" and for the purpose of determining this knowledge the law has a standard which does not vary with the actual capacity of the particular master, and consequently the master's ignorance is no excuse for a failure to warn. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

- Injury to a servant must be the natural and probable consequence of the employer's negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from the wrongdoer's act. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

- Action brought under former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20) was one for negligence on the part of the master, and when it appeared from the evidence that the servant had equal means with the master of knowing of the defects in machinery and the dangers of employment, and the danger was as obvious to the servant as it was to the master, the servant was not entitled to recovery, notwithstanding any assurances of safety by the master. Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).

In suits for injuries arising from the negligence of the employer in failing to comply with the duties imposed by this section, the employee's petition in order to set forth a cause of action must set out issuable facts constituting not only negligence on the part of the employer, causing the injuries, but also due care on the part of the employee; and it must appear from the allegations that the injured employee did not know, and had no equal means of knowing, all that which is charged as negligence to the employer, and by the exercise of ordinary care could not have known. Bowers v. Louisville & N.R.R., 33 Ga. App. 692, 127 S.E. 667 (1925); Flippin v. Central of Ga. Ry., 35 Ga. App. 243, 132 S.E. 918 (1926); Clark v. Western & A.R.R., 41 Ga. App. 317, 152 S.E. 847 (1930); Holman v. American Auto. Ins. Co., 201 Ga. 454, 39 S.E.2d 850 (1946); Elrod v. Ogles, 78 Ga. App. 376, 50 S.E.2d 791 (1948); A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

- Ordinarily, what constitutes ordinary care, or the lack of it, whether a servant assumed a risk which caused the injury, and similar questions, are mixed issues of law and fact peculiarly for jury resolution, and to some extent must be based on inferences to be drawn from the evidence. Jones v. Aaron, 124 Ga. App. 738, 186 S.E.2d 132 (1971).

Cited in Nobel v. Jones, 103 Ga. 584, 30 S.E. 535 (1898); Western & A.R.R. v. Bradford, 113 Ga. 276, 38 S.E. 823 (1901); Evans v. Mills, 119 Ga. 448, 46 S.E. 674 (1904); Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230, 47 S.E. 581 (1904); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904); Crown Cotton Mills v. McNally, 127 Ga. 404, 56 S.E. 452 (1907); Turner v. Seville Gin & Whse. Co., 127 Ga. 555, 56 S.E. 739 (1907); Atlanta & B. Air-Line Ry. v. McManus, 1 Ga. App. 302, 58 S.E. 258 (1907); Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79, 58 S.E. 289 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907); Short v. Cherokee Mfg. Co., 3 Ga. App. 377, 59 S.E. 1115 (1908); Freeman v. Savannah Elec. Co., 130 Ga. 449, 60 S.E. 1042 (1908); Hobbs v. Small, 4 Ga. App. 627, 62 S.E. 91 (1908); Taylor v. Virginia-Carolina Chem. Co., 4 Ga. App. 705, 62 S.E. 470 (1908); Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142, 62 S.E. 720 (1908); Roland v. Tift, 131 Ga. 683, 63 S.E. 133, 20 L.R.A. (n.s.) 354 (1908); Holland v. Durham Coal & Coke Co., 131 Ga. 715, 63 S.E. 290 (1908); Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65 (1909); Redding v. Central Ga. Tel. Co., 6 Ga. App. 831, 65 S.E. 1068 (1909); Smith v. Southern Ry., 8 Ga. App. 822, 70 S.E. 192 (1911); Mills v. Bartow Lumber Co., 9 Ga. App. 171, 70 S.E. 983 (1911); Elliott v. Tifton Mill & Gin Co., 12 Ga. App. 498, 77 S.E. 667 (1913); Spencer v. Lauer & Harper Co., 14 Ga. App. 35, 81 S.E. 387 (1913); Lawrenceville Oil Mill v. Walton, 143 Ga. 259, 84 S.E. 584 (1915); Green v. Brinson Ry., 16 Ga. App. 639, 85 S.E. 931 (1915); Young v. Stuart Lumber Co., 17 Ga. App. 410, 87 S.E. 149 (1915); Williams v. Southern Ry., 144 Ga. 565, 87 S.E. 771 (1916); Niblett v. LaGrange Mills, 18 Ga. App. 173, 88 S.E. 1009 (1916); Kirbo v. Southern Ry., 18 Ga. App. 187, 89 S.E. 179 (1916); Rush v. Southern Ry., 19 Ga. App. 521, 91 S.E. 898 (1917); City of Atlanta v. Hagan, 20 Ga. App. 822, 93 S.E. 541 (1917); Charleston & W.C. Ry. v. Patton, 22 Ga. App. 554, 96 S.E. 504 (1918); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S.E. 609 (1921); Central of Ga. Ry. v. Lindsey, 28 Ga. App. 198, 110 S.E. 636 (1922); Wood v. Pynetree Paper Co., 29 Ga. App. 81, 114 S.E. 83 (1923); Newman v. Griffin Foundry & Mach. Co., 38 Ga. App. 518, 144 S.E. 386 (1928); Atlanta, Birmingham & Coast R.R. v. Mullis, 43 Ga. App. 692, 159 S.E. 893 (1931); Tanner v. Louisville & N.R.R., 45 Ga. App. 734, 165 S.E. 761 (1932); Gartrell v. Russell, 51 Ga. App. 519, 180 S.E. 860 (1935); Story v. Crouch Lumber Co., 61 Ga. App. 210, 6 S.E.2d 86 (1939); Kidd v. Williamson, 61 Ga. App. 890, 8 S.E.2d 590 (1940); Ray v. Western & A.R.R., 62 Ga. App. 609, 9 S.E.2d 92 (1940); Daugherty v. Summerall, 64 Ga. App. 638, 13 S.E.2d 705 (1941); Jackson v. Thompson, 77 Ga. App. 367, 48 S.E.2d 903 (1948); Evans v. Carroll, 85 Ga. App. 227, 68 S.E.2d 608 (1952); Howerdd v. Whitaker, 87 Ga. App. 850, 75 S.E.2d 572 (1953); Hanson v. Atlanta Lodge No. 78 B.P.O. Elks, Inc., 88 Ga. App. 116, 76 S.E.2d 77 (1953); Harris v. Price, 95 Ga. App. 521, 98 S.E.2d 118 (1957); Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960); Henry v. Adams, 111 Ga. App. 297, 141 S.E.2d 603 (1965); Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966); Taff v. Harris, 118 Ga. App. 611, 164 S.E.2d 881 (1968); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Taylor v. Bolton, 121 Ga. App. 141, 173 S.E.2d 96 (1970); Mathis-Akins Concrete Block Co. v. Tucker, 127 Ga. App. 699, 194 S.E.2d 604 (1972); Murray Chevrolet Co. v. Godwin, 129 Ga. App. 153, 199 S.E.2d 117 (1973); Dodd v. Clary, 135 Ga. App. 296, 217 S.E.2d 397 (1975); Butler v. Shirah, 154 Ga. App. 111, 267 S.E.2d 647 (1980).

Competency of Employees

Selection and retention of competent servants.

- Duty of the master to select and retain only competent servants is not absolute, but is to be measured by knowledge, actual or constructive, of the probable results of the master's conduct. Likewise, when a servant has knowledge, or has an equal opportunity with the master to acquire knowledge, of the incompetency of a fellow servant there can be no recovery; in such a case the servant will be said to have "waived" the negligence of the master. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

- If the plaintiff knew that the plaintiff's fellow servants, about whose conduct the plaintiff is complaining, were retained after the plaintiff notified the employer of their incompetence, the plaintiff should not have engaged in the same service with them any more than the plaintiff should work with a defective tool given to the plaintiff by an employer. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

Safety of Place of Work

Master's duty.

- Master is under an absolute duty to a servant to furnish the servant a safe working place and to warn of unusual or newly developed dangers which arise in the course of the employment and which are likely to escape an ordinarily prudent servant's knowledge under the circumstances. The servant may, without creating an imputation of negligence against oneself, rely upon the master's performance of these duties until such time as the servant shall discover, or in the exercise of ordinary diligence should discover, that there has been a failure in this respect upon the master's part. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

Duty to furnish a safe place to work relates to the equipment of houses, plants and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose the master's servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

- Master must take into account the properties of such substances as the master employs for the purposes of the master's business and the operation of familiar physical laws upon these substances, and the master is chargeable with knowledge of the fact that fumes or dust given off by various substances used in industrial processes are poisonous to persons who inhale them. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

- It is the duty of the employer to provide its employees with a safe workplace and to warn them of any unusual conditions that may exist, or of any conditions of which employees may have no knowledge, and this duty is not abated when construction or renovation is being done at the workplace; indeed, it might be argued that the employer's duty is enhanced in such situations, inasmuch as it would have knowledge which the ordinary employee might not possess. Church v. SMS Enters., 186 Ga. App. 791, 368 S.E.2d 554 (1988).

- Dangers arising from an unsafe place are not included within the risks assumed by the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933); Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

- Servant or employee is not required to make a special inspection to see the condition of the place furnished to the servant, but if, by exercising ordinary care, the servant can discover the condition of it, it is the servant's duty to do so. Spivey v. Lovett & Brinson, 48 Ga. App. 335, 172 S.E. 658 (1934); Hopkins v. Barron, 61 Ga. App. 168, 6 S.E.2d 96 (1939).

Safety of Tools and Machinery

Employee's duty of care.

- Adult employee is to exercise ordinary care to protect oneself from being injured by defective or dangerous machinery; the employee is to exercise that degree of care which might reasonably be expected of an ordinarily prudent person under like circumstances. Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620, 37 S.E. 873 (1901).

- Servant is under no obligation to inspect appliances to discover concealed dangers which would not be disclosed by superficial observation. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Employee is under no duty to inspect a ladder supplied by an employer to discover defects which would not be discernible by mere observation. A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963).

- In a farm employee's action for negligence against an employer, there was no basis for a recovery for furnishing defective machinery under O.C.G.A. § 34-7-20, when the evidence was uncontroverted that the employee had equal knowledge with the employer of a defect in the "power takeoff" of the tractor, the employee's claim was barred by the plain language of O.C.G.A. § 34-7-23 and the trial court erred in giving a separate instruction on the liability for furnishing defective machinery which was not adjusted to the evidence. Strickland v. Howard, 214 Ga. App. 307, 447 S.E.2d 637 (1994).

- Though a servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care, the servant has the right to assume that the master has performed the duty of furnishing the servant with a safe place to work and is under no obligation to inspect the work place in order to discover latent defects not open to ordinary observation. Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

In a case of latent defects - those which are discoverable by proper inspection - the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

- If the danger from the continued use of a defective tool or instrument is so obvious or apparent that an ordinarily prudent person would not continue to use the instrument, a servant, although the servant may have received assurances of safety from the master, may not continue its use and hold the master liable for ensuing injury, as the use by the servant of an obviously dangerous instrument amounts to the failure to use ordinary care to avoid the consequences of the master's negligence. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

Adult servant of ordinary intelligence will be held to be affected with knowledge of a manifest risk or danger incident to the doing of a particular thing in the operation of a machine, during the servant's employment, although the servant may be inexperienced as to such operation and though the master may have failed to instruct the servant in respect thereto. Self v. West, 82 Ga. App. 708, 62 S.E.2d 424 (1950).

- It is actionable negligence for a master to order a servant to work with an unsafe instrumentality, and an assurance of safety, coupled with the order, not only aggravates the master's negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant's contributory negligence one for solution by the jury, unless the danger be so obvious that to undertake to encounter it amounts to plain rashness. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

In an action for injuries to a servant resulting from the servant's compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of the employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

If a servant points out a danger and the master orders the servant to pursue the dangerous activity anyway, the master is liable for any injury which results. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

- While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment so far as the servant has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied agreement to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands the servant to proceed with the work and assures the servant there is no danger the law implies a quasi new agreement whereby the master relieves the servant of the servant's former assumption of the risk and places responsibility for the ensuing injury upon the master. Bush v. West Yellow Pine Co., 2 Ga. App. 295, 58 S.E. 529 (1907); Massee & Felton Lumber Co. v. Ivey, 12 Ga. App. 583, 77 S.E. 1130 (1913); Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936); Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941); Borochoff v. Fowler, 98 Ga. App. 411, 105 S.E.2d 764 (1958), later appeal, 104 Ga. App. 401, 122 S.E.2d 157 (1961), rev'd on other grounds sub nom. Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962).

When the master commanded the servant to proceed with work which the master knows is dangerous with the assurance to the servant that it was not dangerous, such an act on the part of the master relieved the servant of the implied agreement of assumption of risk as to the particular activity warranted as safe, and the master cannot set up as a defense the assumption of risk set forth in this section. Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).

If one engaged to perform a service doubts the safety of performing the service but thereafter proceeds with the work in reliance on the employer's assurance that there is no danger, then unless the danger is so obvious that no prudent person would expose oneself to it, the law implies a new quasi-agreement superseding the assumption of risk and placing responsibility for the resulting injuries on the employer. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224, 173 S.E.2d 416 (1970).

- Fault or "assumption of risk" implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work the servant may recover for any injury which the servant sustains by reason of such defect within a reasonable time after the making of the promise. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

If a servant having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until the master makes the assurances good, and moreover, the assurances remove all ground for the argument that the servant by continuing the employment, engages to assume its risks. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

- When a servant with knowledge of a dangerous condition proceeds with the performance of the servant's duties for a reasonable time, relying upon a promise by the master to rectify such condition, the servant will not be held to have assumed the risk of injury from such dangerous situation or instrumentality, unless it should appear that the danger was so patent that no person of ordinary prudence would carry on work under such conditions and circumstances. Baker v. Augusta Veneer Co., 44 Ga. App. 383, 161 S.E. 676 (1931).

Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which an employee has sustained an injury, it by no means follows that the employee must have appreciated the danger to which the employee was exposed thereby; if this is shown to have been the case, the employee's right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936); Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

It is the employee's appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. When, however, a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

If a servant cannot reasonably rely on a master's "assurances" that a hazardous condition will be corrected, the servant must bear the loss from any injury resulting from obvious dangers, despite the fact that the servant's actions were sanctioned by the master. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

When a servant voluntarily undertook climbing a ladder for 20 years, which the servant described as a very dangerous activity and which the servant knew to be risky, the employer is not liable, despite the assurances to the servant that the ladder's dangerous condition would be repaired, since the servant assumed the risk. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

- Deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Defect may be described by showing that the machine was in a condition that produced certain definitely described results, which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

In an action for damages resulting from bodily injury by an employee against an employer it must be shown either that the danger was not equally apparent to both parties but rested within the superior knowledge of the master, or that, if the servant was following a direct order which appeared to be dangerous but was yet not so obviously dangerous that no reasonably prudent person would undertake to perform it, the servant remonstrated and the master, by thereafter assuring the servant that there was no danger, in effect relieved the servant from the servant's former assumption of risk and the responsibility for resulting personal injuries. Palmer v. Webb, 109 Ga. App. 44, 135 S.E.2d 73 (1964).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 293 et seq.

- 30 C.J.S. Employers' Liability for Injuries to Employees, § 274 et seq.

- Duty of master to warn servant against occupational disease, 6 A.L.R. 355; 105 A.L.R. 80.

Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315.

Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477.

Master's duty to servant to prevent continuance of dangerous sports, 40 A.L.R. 1333.

Duty and liability of master to servant injured by draft animal belonging to master, 42 A.L.R. 226; 60 A.L.R. 468.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Liability of master for injuries to servant from exposure to weather conditions, 52 A.L.R. 904.

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.

Liability of employer for consequences of vaccination or other bodily operation to which employee is subjected, 62 A.L.R. 195.

Liability of master for injuries inflicted on one servant by another by use, maliciously or in sport, of compressed-air device, 62 A.L.R. 1433.

Assumption of risk, under Federal Employers' Liability Act, of excessive speed or failure to give engine signals, 71 A.L.R. 459.

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157.

Statute denying to employer defense of assumption of risk as affecting simple tool rule, 91 A.L.R. 786.

Inadequacy of appliance for purpose contemplated by Safety Appliance Act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138.

Construction and application of 1939 amendment of Federal Employers' Liability Act regarding assumption of risk, 143 A.L.R. 978.

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.

Contributory negligence, assumption of risk, or related defenses as available in action based on automobile guest statute or similar common law rule, 44 A.L.R.2d 1342.

Liability of proprietor of store, office, or similar business premises for injury from fall on floor made slippery by tracked-in or spilled water, oil, mud, snow, and the like, 62 A.L.R.2d 6.

Master's liability to servant injured by farm machinery, 67 A.L.R.2d 1120.

Master's liability for servant's condition or injury resulting in dermatitis, 74 A.L.R.2d 1029.

Hammer as simple tool within simple tool doctrine, 81 A.L.R.2d 965.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Premises liability: proceeding in the dark on inside steps or stairs as contributory negligence, 25 A.L.R.3d 446.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

ARTICLE 3 EMPLOYER'S LIABILITY FOR INJURIES TO RAILROAD EMPLOYEES

Cross references.

- Applicability of general workers' compensation law to railroad common carriers, § 34-9-2.

Liability of railroad companies for damages generally, § 46-8-290 et seq.

- For article, "Actions for Wrongful Death in Georgia: Part One," see 19 Ga. B. J. 277 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," see 19 Ga. B. J. 439 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," section two, see 20 Ga. B. J. 152 (1957).

JUDICIAL DECISIONS

When this article governs.

- In a suit brought by an employee of a railway company for damages for personal injury, when the evidence fails to show that the employee was engaged in interstate commerce at the time the employee was injured, O.C.G.A. Art. 3, Ch. 7, T. 34, the Georgia Employers' Liability Act, governs and not federal law. Gay v. Osteen, 56 Ga. App. 224, 192 S.E. 539 (1937).

RESEARCH REFERENCES

C.J.S.

- 30 C.J.S., Employers' Liability for Injuries to Employees, § 102 et seq.

- Constitutionality of statutes imposing absolute liability on private persons or corporations, irrespective of negligence or breach of a specific statutory duty, for injury to person or property, 53 A.L.R. 875.

What employees are engaged in interstate commerce within the Federal Employers' Liability Act, 65 A.L.R. 613; 77 A.L.R. 1374; 90 A.L.R. 846.

Duty of railroad toward employees in respect of telltales or other warning of low bridge or other structure over track, 79 A.L.R. 236.

Loaned servant doctrine under Federal Employer's Liability or Safety Appliance Act, 1 A.L.R.2d 302.

Excessiveness or adequacy of awards of damages for personal injury or death in actions under Federal Employers' Liability Act (45 USC § 51 et seq.) - modern cases, 97 A.L.R. Fed. 189.