Opinion
39385, 39386.
DECIDED APRIL 23, 1962. REHEARING DENIED MAY 16, 1962.
Actions for damages. Chatham Superior Court. Before Judge McWhorter.
Richardson, Jones Doremus, Ogden Doremus, Aaron Kravitch, for plaintiffs in error.
Oliver, Davis Maner, Edwin Maner, Jr., contra.
Allegations of the plaintiff's petition are held sufficient to charge negligence of the defendant by its employees in directing the plaintiff and assuring her that it was safe to step on a mound of dirt to cross a ditch, which the defendant's employees had dug in furtherance of the defendant's business, when this means of crossing appeared to the plaintiff to be safe, and when by the exercise of ordinary care the defendant's employees could have discovered that it was not safe.
DECIDED APRIL 23, 1962 — REHEARING DENIED MAY 16, 1962.
These are petitions for damages by a wife suing for personal injuries, and her husband, suing for loss of his wife's services. The issues are the same. This statement of facts and the opinion refer to the wife's case, but are also applicable to the decision in the husband's case. The petition as amended alleges in part: The employees of defendant (defendant in error), in running pipes and connecting gas into the home of plaintiff (plaintiff in error), dug a trench, two or three feet deep and about one foot wide, around three sides of the house in such manner as to block ingress and egress into and from the house. When plaintiff came home she jumped over the ditch to get into the house, with the permission and in the presence of defendant's employees. Later, plaintiff had to go out and it was again necessary for her to jump over the ditch, which she did with the permission of the defendant's employees who were there attending to the business of the corporation and in the course of their employment. When plaintiff returned, the servants of the defendant corporation advised her against attempting to jump across the ditch and directed that she stand on a mound of dirt, which had been removed from the ditch and was piled up by them around the rim of the ditch, and then step across. They assured her that the dirt had been packed down properly, was compact and there was no danger whatsoever in her stepping on the dirt mound, and they told her that they had crossed over it themselves numerous times. Plaintiff relied upon the representations of the agents, servants and employees of the defendant corporation, and being assured by them that there was no danger attached to it, that the dirt had been properly packed down and would not give with the weight of her body, and that they would stand by to help her while she was going across the ditch, and having every right to assume that said servants, agents and employees who had told her that they had been doing this work for years and knew about the density and compactness of the dirt, she stepped on the mound of dirt to step across the ditch and as she stepped on it the dirt gave way with her and caused her to fall. Plaintiff struck her mouth on the bottom concrete step leading into the house with such force as to break the maxilla in her front jaw bone and knock out eight teeth, besides other injuries and permanent disabilities which she sustained. That petitioner is not familiar with the density or compactness of sand or dirt and there was nothing that was apparent to show that said dirt or sand alongside the rim of the ditch had not been properly packed so as to support her as she stepped on it, and she could not in the exercise of ordinary care and diligence, with the limited knowledge of an average person, know that there was any possible danger in stepping on the edge of the ditch and then attempting to step or spring over the same. The plaintiff's injuries and damages were caused by specified acts and negligent omissions of the defendant's employees in the above described transaction.
The trial court sustained the defendant's general demurrer and dismissed the petition. On this judgment the plaintiff assigns error.
1. There is no merit in the plaintiff's contention that, because the defendant's general demurrer was not filed until after the plaintiff's amendment, and the time prescribed by Code Ann. § 81-301 for filing defensive pleadings had expired, the trial court erred in considering and ruling on the demurrer. Attacks on the substance, as opposed to the form, of the pleadings can be made orally at any time before verdict. Kelly v. Strouse Bros., 116 Ga. 872, 879 ( 43 S.E. 280); Ayers v. Young, 210 Ga. 441, 442 ( 80 S.E.2d 801); Bigelow-Sanford Carpet Co. v. Goodroe, 98 Ga. App. 394 ( 106 S.E.2d 45). An oral motion to strike or to dismiss is essentially the same as a general demurrer. Code Ann. § 81-301 does not forbid the trial court to pass on objections to the substance of pleadings when made in writing, rather than orally, at any time before verdict. Mayo v. Owen, 207 Ga. 641 ( 63 S.E.2d 649).
2. The allegations of the petition do not show that the plaintiff failed to exercise ordinary care for her own safety. The plaintiff had twice, with the permission of defendant's employees, crossed the ditch without mishap and changed the method of crossing on the advice and direction of the defendant's employees who were working at the ditch. They assured her that the way they directed her to cross was safe and that they were experienced and had special knowledge in the matter. It was not apparent to her that the dirt mound on which they directed her to step was not packed compactly and adequately to support her as they represented it to be, or that there was any danger in using it. We think in these circumstances the plaintiff could reasonably have assumed that there was some reason for the defendant's employees directing her to change her means of the crossing as they did, and that she was not as a matter of law negligent in following their directions or in failing to ascertain that the dirt mound was not as they represented it to be. Crane Auto Parts v. Patterson, 90 Ga. App. 257, 261 ( 82 S.E.2d 666); Misenhamer v. Pharr, 99 Ga. App. 163, 166 ( 107 S.E.2d 875); Etheridge Motors v. Haynie, 103 Ga. App. 676 ( 120 S.E.2d 317). Plaintiff's allegation that the dirt mound did not appear dangerous to her "does not necessarily show the condition or defect was of such nature that a reasonably prudent person should have foreseen" the danger. Misenhamer v. Pharr, 99 Ga. App. 163, 168, supra. On the other hand, we cannot say as a matter of law that plaintiff in the exercise of ordinary care should have known that it was dangerous, particularly in view of the directions and assurances of the defendant's employees. Hence the question of plaintiff's care for her own safety must be left to the jury. Central City Ice Works v. Mayor c. of Macon, 92 Ga. 413 ( 17 S.E. 660). The case of Central of Georgia R. Co. v. Roberts, 213 Ga. 135 ( 97 S.E.2d 149), cited by the defendant, is different from the present case in that the directions given by the defendant's agents, alleged as negligence in that case, placed the plaintiff in a place of safety.
3. The petition is not subject to general demurrer as failing to show that the defendant's employees in directing the plaintiff over the ditch were acting within the scope of their employment. The petition shows that the employees were clothed with such authority. Thomas v. Smith, 91 Ga. App. 508 ( 86 S.E.2d 353). The digging of the ditch was in furtherance of the defendant's business. If the ditch was an impediment to entering the house, or if it was necessary in digging and maintaining the ditch to direct persons over it, such directions would also be in furtherance of the employer's business. The persons employed in digging and maintaining the ditch would be impliedly authorized to give such directions as "a necessary and usual means for effectually accomplishing their task." Crane Auto Parts v. Patterson, 90 Ga. App. 257, 260 supra; Ellison v. Evans, 85 Ga. App. 292, 296 ( 69 S.E.2d 94); McGhee v. Kingman Everett, 49 Ga. App. 767, 768 ( 176 S.E. 55) International Agricultural Corp. v. Slappey, 261 F 279, 282; Hinson v. United States, 257 F.2d 178, 183. In Bazemore v. MacDougald Const. Co., 85 Ga. App. 107 ( 68 S.E.2d 163), cited by the defendant, the workman of whom the plaintiff inquired and who assured her that the sidewalk where she was injured was safe, was not shown to have worked on or to have had anything to do with the defect in the sidewalk which had been created some time previously.
4. The allegations of the petition are sufficient to charge negligence by the defendant's employees in directing the plaintiff to step on the mound of dirt and across the ditch, when this means of crossing appeared to the plaintiff to be safe but was not safe, and in assuring the plaintiff that it was safe to cross when by the exercise of ordinary care they could have discovered otherwise. Lenkeit v. Chandler, 97 Ga. App. 769 ( 104 S.E.2d 476); Etheridge Motors v. Haynie, 103 Ga. App. 676, supra; Restatement of the Law of Torts, 840, § 310; 843, § 311. Accord Burks v. Green, 85 Ga. App. 327, 329 ( 69 S.E.2d 686); King Hardware Co. v. Ennis, 39 Ga. App. 355 ( 147 S.E. 119); Segal v. Carroll Furniture Co., 51 Ga. App. 164 ( 179 S.E. 775).
The trial court erred in sustaining the general demurrer.
Judgment reversed. Felton, C. J., and Bell, J., concur.