O.C.G.A. § 34-7-43 (2019)
Assumption of risk where employer is contributorily negligent
In any action brought against any common carrier by railroad, under and by virtue of any of the provisions of Code Sections 34-7-41 and 34-7-42, to recover damages for injuries to or the death of any of its employees, the employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of the employees contributed to the injury or death of such employee.
History
(Ga. L. 1909, p. 160, § 3; Civil Code 1910, § 2784; Code 1933, § 66-403.)
Annotations
JUDICIAL DECISIONS Statutory construction. - Provision of former Code 1933, § 66-403 (see now O.C.G.A. § 34-7-43) which abolished the defense of the assumption of risk when there had been a violation by the common carrier of any statute enacted for the safety of the employee has reference to statutes specifically applicable to the operations and equipment of such carriers and was not intended to, and cannot properly, apply to the provisions of former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20). Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953). Assumption of risk and contributory negligence. - Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while lack of ordinary care for one’s own safety, or contributory negligence, is a matter of some
fault or departure from the standard of reasonable conduct. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962). Assumption of risk and contributory negligence may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that the plaintiff must be taken to have known of them, and risks which plaintiff merely might have discovered by the exercise of ordinary care. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962). Cited in Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913); Atkinson v. Boggs, 16 Ga. App. 738, 86 S.E. 62 (1915).
RESEARCH REFERENCES Am. Jur. 2d. - 32B Am. Jur. 2d, Federal Employers’ Liability and Compensation Acts, § 6. ALR. - Employer’s promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 ALR 901. Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 ALR 157. Construction and application of 1939 amendment of Federal Employers’ Liabil-
ity Act regarding assumption of risk, 143 ALR 978. Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 ALR 594. Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 ALR 982. Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 ALR3d 1039.