Opinion
37169.
DECIDED JUNE 23, 1958.
Action for damages. Fulton Superior Court. Before Judge Pharr. April 8, 1958.
MacDougald Feagin, John E. Feagin, James A. Mackay, for plaintiff in error.
Hewlett, Dennis, Bowden Barton, John F. Dennis, contra.
The petition set forth a cause of action and the judge erred in sustaining the general demurrer.
DECIDED JUNE 23, 1958.
John A. Wood filed a suit for damages against James R. Moore. The petition as amended alleged in part: that on April 4, 1957, and for some time prior thereto, petitioner was in the employment of Industrial Steel Erectors of Birmingham, Alabama, as a steel and iron worker; Industrial Steel Erectors were at that time subcontractors in the construction and erection of the Owens-Illinois Glass Plant at Hapeville, Georgia; at the time and prior thereto, the defendant, James R. Moore, was a subcontractor under George Fuller Construction Company, the general contractor, for the fabricated stone, rock, and brickwork involved in the construction of the plant and particularly involved in the construction of the plant and particularly involved in the construction of the furnaces or kilns for the manufacturing of glass; as a part of their respective duties in the construction of the glass kilns, it was the job of the defendant to stack in circular place the fabricated rock or stones to form the walls of the furnaces or kilns to be constructed; the rock or stones to be used by the defendant in this process were of dimensions approximately 12" x 24" x 48", and weighed variously from 800 to 1,000 pounds each; these stones were stacked, according to plan, in an oblong shape to form the outside of the kiln, and were stacked, each one standing on its end, so that it would be 4 feet from the top to bottom, and were placed resting on a platform 15 feet above the ground-floor level of the building, which platform was designed to become the floor of the kiln under construction, and according to plan were to be made solid by the fusion of the molten glass in the kiln when put into operation which would have the effect of cementing the stones together and making the permanent structure of the kiln; as a part of its obligations under its subcontract, Industrial Steel Erectors was required to erect a bar support by buckstays to support the fabricated firebricks to build the vat for molding glass and petitioner's duty on the day in question was that of welding angle clips to the buckstays for a bar to support these bricks; on the day in question, at about nine-thirty o'clock a. m., petitioner was standing on a girder with his welding mask in place over his face and was in the process of welding angle clips to the buckstay on a certain vat in the process of construction at the plant and while so welding, he put his hand upon one of the fabricated bricks placed there by agents and employees of the defendant and at this time the rock or fabricated brick fell forward, forcing petitioner off the girder and causing him to fall to the level of the main floor of the building, a distance of some sixteen feet; petitioner landed on the main floor and the rock crashed and broke beside him, within two feet of him; petitioner alleges that the accident above described and his resulting injuries are the direct and proximate result of the negligence of the defendant through his employees whose names are not known to petitioner but are well known to the defendant herein and who were engaged in the stacking of the fabricated brick in oblong form preparatory to the construction of the vat for molding glass on the premises above mentioned, which negligence consisted in the following particulars: (a) in that the fabricated stone or brick upon which petitioner laid his hand had been stacked off center so that it would topple upon the slightest touch, whereas had the same been stacked directly on center, no amount of force less than one thousand pounds would have caused the same to move; (b) in that the defendant employed and had available no inspector or supervisor to watch the stacking of the bricks for said kiln and to see that the same were correctly placed and stacked in a position where they were not likely to topple over; (c) in that the defendant gave no warning to petitioner or the other steel workers that said fabricated bricks were loosely stacked and were stacked in such manner that they were apt to fall over upon the application of the slightest pressure; (d) in that the defendant employed no scaffolding or other protective barriers to prevent the brick from falling over and injuring the other workers engaged in the construction of the vat; (e) in that the fabricated stone or brick that fell with petitioner was stacked with part of the same protruding over the edge of the said platform so that only a slight force was necessary to cause the same to become off balance and topple over the edge of the platform; petitioner alleges that the above described negligence on the part of the defendant constituted the proximate cause of his accident and the resultant injuries to him and that he, himself, was in the exercise of ordinary care and diligence and could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care and diligence; petitioner, from his standing position, could not see and did not see that the stone, which fell with him, protruded over the edge of the platform upon which it was resting, inasmuch as petitioner was working on a buckstay at the top of the line of stones and was standing on a steel beam surrounding the platform and the line of stones.
The defendant filed a general demurrer to the petition. The judge sustained the demurrer, and the plaintiff excepts.
1. The defendant insists that the petition sets forth no cause of action because it does not show that there was any duty owed by him to the plaintiff. With this contention we do not agree. When the defendant's employees constructed the walls of the furnace he knew or should have known that there would be other people who would follow him and complete the construction. He owned those who followed a duty not to construct the furnace in such a negligent manner as would endanger their lives while completing the structure. A case very similar to the present one is McBurney v. Richardson, 93 Ga. App. 138 ( 91 S.E.2d 123). The fact that the plaintiff placed his hand upon the brick, exerting only slight force, would not debar his recovery, because the petition alleged that, if the fabricated stone or brick had been properly placed, it would have required a force of at least 1,000 pounds to cause it to move. The petition set forth facts sufficient to present a jury question as to whether the defendant's employees were negligent and whether this negligence was the proximate cause of the plaintiff's injuries.
2. The defendant further contends that the plaintiff should be debarred of recover because he failed to exercise ordinary care for his own safety. The petition alleges that due to the position where the plaintiff was standing he was unable to observe that the brick was improperly placed. This is not a case where it is clear, plain, and indisputable that the plaintiff failed to exercise ordinary care for his own safety, and the defendant's contention is for that reason without merit.
The judge erred in sustaining the general demurrer to the petition.
Judgment reversed. Felton, C. J., and Nichols, J., concur.