Opinion
49999.
ARGUED JANUARY 9, 1975.
DECIDED FEBRUARY 19, 1975. REHEARING DENIED MARCH 10, 1975.
Action for damages. Troup Superior Court. Before Judge Knight.
Allen, Quillian Willis, Jerry Willis, for appellant.
Moore Morris, Charles E. Moore, for appellee.
Where it is shown that an employee of a subcontractor has knowledge of the danger of falling into an opening in the floor in a building under construction, equal to, or greater than the general contractor, and by his negligence falls and is injured, he assumes the risks, and directed verdict for the general contractor is demanded.
ARGUED JANUARY 9, 1975 — DECIDED FEBRUARY 19, 1975 — REHEARING DENIED MARCH 10, 1975 — CERT. APPLIED FOR.
The evidence in this case shows that appellant was serving as general contractor for the construction of a new store, and Otis Elevator Company was the subcontractor employed by appellant to install the escalator system. Appellee, Shipley, a twenty-seven-year-old man, was employed as a mechanic's helper for the subcontractor and had been so employed for approximately eighteen months. He had been in construction work for approximately four years. Mr. Shipley was assisting in the installation of the escalator system between the basement and first floor of the building under construction. There was an oval-shaped opening some thirty to forty feet in length and eighteen to twenty feet in width in the first floor to permit installation of the escalator. Around this opening there were four concrete posts that ran from basement to the ceiling of the first floor. A barricade which was constructed and maintained by the general contractor was nailed to these posts and encircled the opening. There was considerable evidence as to how it was constructed and how strong it was, and as to its state of repair. However, it is undisputed that it was in place and that plaintiff-appellee saw it, was aware of it and the hole, and the danger if one fell through the hole. The plaintiff did not check the barricade for sturdiness.
Being told by his superior to measure the hole, and upon stating that he did not have a measuring device, the supervisor, who was in the basement below him attempted to throw him a ruler, but did not throw it very close to plaintiff. Plaintiff reached for the ruler, lost his balance and put, by his testimony, slight pressure on the barricade which gave way and he fell into the basement and sustained damages for which he brought this action.
A motion for directed verdict was made at the end of the evidence and was overruled. There was a verdict and judgment for the plaintiff. The appellant appeals from such judgment and enumerates as error the overruling of his motion.
Barricades, as is quite commonly known, are generally used to deter people from moving from one geographical location to another. This is accomplished in two (2) ways, to wit: One, barricades serve as warnings; and two, barricades physically impede the passage of a person from one location to another. A barricade is not usually a scaffold. In the absence of evidence to the contrary, a barricade is not expected to bear the weight of a man, however great or small, when he is working around it. The courts take judicial cognizance of matters of common knowledge and common experience among men. Southern R. Co. v. Covenia, 100 Ga. 46 ( 29 S.E. 219); Snider v. State, 81 Ga. 753 ( 7 S.E. 631).
Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose, and also knew or should have anticipated that it would be diverted to the foreign use. Culbreath v. Kutz Co., 37 Ga. App. 425 ( 140 S.E. 419).
The duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant. Elrod v. Ogles, 78 Ga. App. 376 ( 50 S.E.2d 791). In either case, two elements must exist in order to merit recovery; fault on the part of the owner, and ignorance of the danger on the part of the invitee. Accordingly, the duty which a general contractor, in the circumstances related, owes the subcontractor is to exercise the care of an ordinarily prudent person to prevent him from being exposed to a hazard or hazards other than those that ordinarily attend a person's presence on premises where a building is under construction. Braun v. Wright, 100 Ga. App. 295 ( 111 S.E.2d 100). The barricade warning of the hole was in this case duly noted by plaintiff and his knowledge of danger encountered was at least as great if not greater than that of the general contractor.
"The basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known conditions." Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 ( 81 S.E.2d 721).
The line of cases holding hidden dangers causing damages to invitees have no validity under the facts in this case. Here, the danger was apparent.
While questions of negligence, proximate cause, and contributing negligence are usually questions for a jury, yet, as here, where it is shown that one who recklessly tests an observed and clearly obvious peril is guilty of a lack of ordinary care, and his own negligence, notwithstanding any accompanying negligence by another, may, under the particular facts, be deemed the proximate cause of his injuries, it will be held as a matter of law that there be no recovery. We hold that the evidence here shows such a plain and palpable case and demands a verdict for the defendant, and that the court below erred in refusing to direct a verdict for defendant.
Judgment reversed. Quillian and Clark, JJ., concur.