Opinion
40399, 40406.
DECIDED MARCH 5, 1964. REHEARING DENIED MARCH 19, 1964.
Action for damages. DeKalb Superior Court. Before Judge Guess.
Hewlett Ward, Florence Hewlett Dendy, for plaintiff in error.
Sam F. Lowe, Jr., Smith, Field, Ringel, Martin Carr, contra.
1. "If there are dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning with respect thereto. Code § 66-301. It is the duty of the master to exercise ordinary care to provide and maintain a reasonably safe place for his servant to work. Chenall v. Palmer Brick Co., 117 Ga. 106 ( 43 S.E. 443). The duty of the master to keep his premises and to conduct his business in such a manner that his servants may perform their duties in safety is but a phase of the broader and more anciently recognized doctrine of the common law, that every person who expressly or impliedly invites another to come upon his premises or to use his instrumentalities is bound to use ordinary care to protect the invited person from injury while upon his premises. However, a servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself, and in cases of injury it must appear that the servant did not know of the danger and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof. Code § 66-303; Ludd v. Wilkins, 118 Ga. 525 ( 45 S.E. 429). Upon one who brings a suit against his master for injuries it is incumbent to show not only negligence on the part of the master, but due care on his part; and it must appear that the person injured did not know and had not equal means of knowing all that is charged as negligence to the master, and by the exercise of ordinary care could not have known thereof. Daniel v. Forsyth, 106 Ga. 568 ( 32 S.E. 621); Winship Mach. Co. v. Burger, 110 Ga. 296 ( 35 S.E. 120); DeLay v. Southern R. Co., 115 Ga. 934 ( 42 S.E. 218); Williams v. Atlantic C. L. R. Co., 18 Ga. App. 117 ( 89 S.E. 158); Ludd v. Wilkins, supra." Holman v. American Auto. Ins. Co., 201 Ga. 454, 459 ( 39 S.E.2d 850).
2. The gravamen of plaintiff's complaint is that the defendant in supplying a scaffold provided one with a cross member not properly braced or supported or not securely nailed, and thus did not furnish plaintiff with a safe place to work. While a servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care, he has the right to assume that his master has performed the duty of furnishing him with a safe place to work and is under no obligation to inspect the same in order to discover latent defects not open to ordinary observation. A danger arising from an unsafe place is not included among the risks assumed by the servant. King Mfg. Co. v. Walton, 1 Ga. App. 403 (3) ( 58 S.E. 115); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155 (1c) ( 95 S.E. 765).
3. Whether the plaintiff had the same opportunity as the defendant of knowing the defects alleged and proved would depend upon the character of such defects, whether they are latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not on the servant. 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. Moody v. Hardeman, 44 Ga. App. 676 (3) ( 162 S.E. 653) and cases there cited.
4. The condition of the scaffold as to being nailed underneath being discoverable by close inspection only, and the duty of inspection not being within the scope of the work for which he was employed, plaintiff had the right to rest upon the assumption that the master had performed his duty to see that the scaffold was in a safe condition. See Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259 ( 58 S.E. 249). It follows, therefore, that the trial court did not err in failing to grant the motion of the defendant for a judgment notwithstanding the verdict for the plaintiff.
5. The charges of the court complained of in plaintiff's motion for new trial, relating to the duty of the plaintiff to inspect the scaffold, in view of the evidence and the above rulings, were harmful error.
6. A charge on a contention arising from the evidence, though not pleaded, is not reversible error. Bugg v. Carter, 34 Ga. App. 819 (1) ( 131 S.E. 297); Waynesboro Planing Mill v. Perkins Mfg. Co., 35 Ga. App. 767 (3) ( 134 S.E. 831).
7. The striking of pleadings on motion is not a proper ground of a motion for a new trial. Bearden v. Lane, 107 Ga. App. 424, 427 (5) ( 130 S.E.2d 619).
8. The question of the sufficiency of the preliminary proofs to identify a photograph, or to show that it is a fair or accurate representation of the objects which it purports to portray, is a question committed to the discretion of the trial judge. Johnson v. State, 158 Ga. 192, 198 ( 123 S.E. 120). There does not appear to be any abuse of discretion in the refusal to admit the photograph in evidence in the present case.
9. The other grounds of plaintiff's motion for new trial, not herein specifically dealt with, are without merit.
The trial judge erred in overruling plaintiff's motion for new trial for the reason set forth in headnote 5.
Judgment reversed on main bill of exceptions; affirmed on cross bill. Bell, P. J., and Hall, J., concur.
DECIDED MARCH 5, 1964 — REHEARING DENIED MARCH 19, 1964.
Patrick Owensby, a dry wall finisher, brought an action against Otis H. Jones, a general contractor, to recover for injuries received when some scaffolding being used by Owensby and a helper gave way at a house being constructed by Jones. The petition alleged in part as follows: "That under said employment agreement between petitioner and defendant, petitioner was to furnish all labor for said dry-wall `finishing work' and defendant was to furnish all materials and scaffolds necessary to perform said work. That said scaffolding was constructed by nailing a 2 x 4 wooden board longitudinally across the end of the stairwell nearest the street, with one end of said 2 x 4 wooden board resting across a concrete block wall, this cross member in turn providing support for 2 x 10 scaffold boards or walk boards which could be placed across the top of said 2 x 4 cross member on one end with the other end resting through the door of said stairwell and in the hall of said dwelling. That said scaffolding was constructed to allow petitioner to stand on the 2 x 10 wooden walk boards or scaffold boards to finish off the dry-wall joints located in the interior of the stairwell. That in constructing the end of the scaffolding by a 2 x 4 cross board brace, defendant had secured said 2 x 4 board by nailing one end to the bottom of the floor joist, the other end being located on the opposite side of said stairwell on the top of a concrete block wall. That at the time of said occurrence, due to the fact that one end of said 2 x 4 cross piece was nailed up under the floor joist and was hidden from the view of petitioner by the lumber in said joist and also the sheetrock nailed vertically around the inside of said stairwell, petitioner was unable to ascertain that one end of said 2 x 4 cross piece was not securely braced in order to support his said weight. That petitioner had no reason to suspect or was he warned by defendant or any of his agents or employees that said scaffolding was not securely braced prior to using same. That prior to the occurrence when petitioner received his injuries, he had worked in said stairwell using said 2 x 4 cross piece to support 2 x 10 walk boards and had also observed other employees of defendant, to wit: W. P. Echols and Frank Jones, also using said 2 x 4 cross piece to support scaffold boards. That defendant was negligent as follows: (a) In failing to properly brace the 2 x 4 cross member supporting one end of the scaffolding upon which petitioner was working at the time of said occurrence. (b) In failing to provide petitioner with a reasonably safe place to work. (c) In failing to warn petitioner that said 2 x 4 cross member was not braced or supported in any manner whatsoever. (d) In failing to maintain lights in and about said scaffolding in order that petitioner or others would be on notice that said 2 x 4 cross member was not braced. (e) In failing to warn petitioner of the dangerous condition of said scaffolding before requesting him to use same." The specifications of negligence (c) and (d) were stricken on motion by the trial judge.
Upon the trial of the case, the evidence showed that the plaintiff had an oral contract with the defendant on a piece-work basis under which the defendant was required to furnish scaffolding and all materials. A scaffold with a 2 x 4 cross piece was used by plaintiff and others prior to the time of plaintiff's injury, but there is a conflict in the evidence as to how this scaffold was constructed. Some of the evidence tended to show that the 2 x 4 cross piece was nailed to, or rested upon, 2 x 4 brackets nailed to the sills or joists on either side of the stairwell. Some of the evidence tended to show that the cross piece was nailed at each end to a 2 x 4 post resting on the floor of the basement, which posts were nailed to the joists or sills. The evidence was undisputed that the original two walkboards were nailed together on the under side with a wooden strip so as to hold the walkboards together and keep them even and in place, as one had a tendency to spring more than the other, and that the walkboards had a 2 x 4 post under them resting on concrete blocks on the floor of the basement. The defendant's evidence showed that this entire scaffolding, including the 2 x 4 cross piece was torn down prior to the time the plaintiff went back to finish his work. The plaintiff, in testifying as to the original building of the scaffold, which was done while he was in the building, testified that all he ever saw was one cross piece, one end lying on top of the concrete block foundation and the other one extending back under the sill on the opposite side of the stairwell; that he was not testifying that there was no prop under the cross piece but that he didn't see one, and finally testified that when he saw this original scaffold, the walkboards were in place and all he ever saw was a cross piece and that he did not know whether there was a brace underneath it or not at that time; that the walkboards prevented him from seeing underneath the cross piece. Plaintiff testified that when he came back to finish his work in the stairwell at the direction of the defendant, a 2 x 4 cross piece was there, one end resting on a ledge of a concrete block wall on one side of the stairwell and running across the stairwell under the joist or sill on the other side; that this cross piece was about a foot or more from the end of the stairwell opposite the doorway and that he and his helper procured two 2 x 8, or 2 x 10 boards about 12 feet long and placed them with one end resting on the cross piece and the other end resting on the floor in the hall, and the helper jumped up and down on the boards to test the strength of the cross piece before they put the work bench on the walkboards. Plaintiff further testified that there was sufficient light in the stairwell area for him to see how to do his work but he couldn't say where most of the light was coming from, whether through the basement window or other sources, and finally testified that whether the basement was dark or brilliantly lit "would have made no difference from the angle and the elevation that I was observing the scaffold, it would have made no difference whether it was light or dark as to whether I could tell whether this thing was securely braced." When asked as to this occasion whether he could see there was no vertical support underneath the cross piece and whether he could see inside of the entire basement area by looking down, he replied that that was not possible unless he lay down and hung over and looked under. He also testified that in order to examine the under side of the cross piece to see how it was supported he would have had to wade through water and mud in the basement to get there and that there was no way for him to have seen how the cross piece was supported except by doing that, and that this mud and water would "inhibit" anybody from going into the basement. In explaining why he failed to wade through the water to examine and determine how the cross piece was supported he stated that he had been on that scaffold before on that same 2 x 4 and had seen others working on it and he had worked on it and it didn't fall with him or the others and he felt he knew that was the same timber these boards had been lying on; it was in the same position and he had no thought that they would have pulled the prop out from under it, if it was ever there, or that it was not nailed up sufficiently; that he assumed the scaffold was exactly like it was when he had seen it before. Plaintiff's helper testified that when he and the plaintiff went to the house to finish the work the 2 x 4 cross piece was in place, one end on the concrete block ledge and the other end running under the joist. He testified that standing in the hall and looking into the stairwell one could not see how the cross piece was secured under the joist or sill, but that it had to be nailed as that was the only way it could be secured under there; there was nothing else to secure one with. The following questions and answers were asked of and given by this witness: "Q. The reason for putting the prop pole in there is because you know that just nailing two by fours together, even with big nails is not a sure and safe thing, don't you? A That's right. Q Now, there was not any prop pole under this cross board in this case at all, was there? A I did not — there wasn't in that one, I mean as far as I know. Q Well, you could look and see, couldn't you? A Yes, sir. Q And you knew there wasn't one? A I didn't see one. Q But you saw there was not any prop pole underneath there? A That's right, because I have seen a lot of them that didn't have prop poles under them. Q The fact is after you saw there wasn't any prop pole there you did not go down and examine this joint whether there was plenty of nails in it or not, did you? A No, sir, because the painters were coming in, too, I mean they wouldn't tear down a scaffold I didn't, — I presume they wouldn't tear down one in order to hurt somebody." He further testified that besides the inconvenience of getting into the water and mud there was nothing to prevent him from going down into the basement and checking the cross piece.
The jury returned a verdict for the plaintiff in a small amount and the plaintiff, being dissatisfied with this verdict, filed a motion for a new trial which was overruled by the trial judge. The main bill of exceptions complains of the overruling of the plaintiff's motion for new trial. A cross bill of exceptions was filed by the defendant complaining of the overruling of the defendant's motion for a judgment notwithstanding the verdict for plaintiff.