Opinion
43243.
ARGUED JANUARY 5, 1968.
DECIDED FEBRUARY 9, 1968. REHEARING DENIED FEBRUARY 23, 1968.
Action for damages. Chatham Superior Court. Before Judge Harrison.
Alton D. Kitchings, for appellant.
Hitch, Miller, Beckmann Simpson, Luhr G. C. Beckmann, Jr., A. Martin Kent, for appellees.
The evidence being in conflict on several material points, and that adduced by the plaintiff being sufficient to authorize a verdict in her favor, it was error to grant the defendants' motion for summary judgment.
ARGUED JANUARY 5, 1968 — DECIDED FEBRUARY 9, 1968 — REHEARING DENIED FEBRUARY 23, 1968 — CERT. APPLIED FOR.
The defendants employed Mrs. Bragg's mother on a weekly basis to take care of their children and house during the daytime. The mother, Mrs. Rogers, was accustomed to taking care of the house in their absence, occasionally washed clothes in the washing machine, and in a few instances when the weather was inclement hung them to dry in the attic on a clothesline prepared for such use. The attic was reached by a disappearing staircase. In another part of the attic was a sort of trap door covered with a removable piece of light plywood supported by molding nailed over the plaster on the interior ceiling of the main floor. The remainder of the space was covered with flooring; there was a metal duct between the stairway entrance to the attic and the trap door, and several clotheslines were strung about, one of which the plaintiff's evidence showed had been run directly over the trap door area. The plaintiff, a 59-year-old woman, went to the attic to hang up some clothes which she had washed. She did not know of the existence of the trap door, and was using the line running over it in a part of the attic in which she had not been before. The raised duct screened her view as she began hanging clothes, and, her attention being focused on the clothesline, she put her weight on the plywood and plummeted through it to the floor below, sustaining specified injuries. Upon these facts the trial court granted the defendant's motion for summary judgment, and the plaintiff appeals.
1. "Where the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon them as invitees, and where such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge, it can not be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury." Wynne v. Southern Bell Tel. Co., 159 Ga. 623 (4) ( 126 S.E. 388). See also, as to defects in floors and walkways which have been held to state a cause of action, Sheraton Whitehall Corp. v. McConnell, 88 Ga. App. 725 ( 77 S.E.2d 752) citing Rogers v. Sears, Roebuck Co., 45 Ga. App. 772 ( 166 S.E. 64); and Robertson v. Liggett Drug Co., 81 Ga. App. 850 ( 60 S.E.2d 268); Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527). "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." Holman v. American Automobile Ins. Co., 201 Ga. 454, 459 ( 39 S.E.2d 850). Where there are dangers incident to the employment, unknown to the servant, of which the master knows or ought to know, he is under a duty to give warning thereof. Code § 66-301. The defendants contend that if the physical facts show an obvious danger, the duty was on the plaintiff equally with them to discover and avoid it; if the danger was not obvious, then there was no duty on the defendants to inspect and discover it. We reject the first argument because of the special circumstances, particularly the facts that the defendants knew the plaintiff might hang clothes in the attic and had actual knowledge of the trap door or access well when they either erected or maintained the clothesline over it, and it is a jury question whether in the exercise of due care a person concentrating on this activity would notice a defect in the flooring, the existence of which she was unaware of. Glover v. City Council of Augusta, 83 Ga. App. 314 ( 63 S.E.2d 422). As to the second contention, the defendants were aware of the existence of the trap door when they placed or maintained the clothesline over it, having lived in the house for a number of years, and it cannot be said as a matter of law that, with the clothesline so placed and actual knowledge that the plaintiff sometimes used it, there was no duty to ascertain whether it would bear her weight. The defendants admitted knowledge at the time the depositions were taken of the construction of the trap door, from which it appears that this weakness was ascertainable on close visual inspection. "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 and not on the servant . . . the master owes to the servant the duty of inspection." Cochrell v. Langley Mfg. Co., 5 Ga. App. 317, 324 ( 63 S.E. 244); Rountree v. Seaboard A.L.R. Co., 31 Ga. App. 231, 238 ( 120 S.E. 654); Moody v. Hardeman, 44 Ga. App. 676 (4) ( 162 S.E. 653).
These facts make issuable both negligence on the part of the defendants and the exercise of ordinary care for her safety on the part of the plaintiff. It was error to grant the motion for summary judgment.
Judgment reversed. Jordan, P. J., and Pannell, J., concur.