Opinion
33296, 33297.
DECIDED JANUARY 9, 1951. REHEARING DENIED FEBRUARY 9, 1951.
Damages; from Thomasville City Court — Judge Craigmiles. August 14, 1950.
Titus Altman, E. J. Summerour, for Southern Bell c. Co.
Alexander, Vann Lilly, for City of Thomasville.
Lebbeus Dekle, in propria persona.
1. The petition shows that Wright Lopez Inc., was employed by Southern Bell Telephone and Telegraph Company as an independent contractor and failed to show any of the requirements of Code § 105-502 necessary to hold Southern Bell liable for any negligence of Wright Lopez Inc., the contractor.
2. The petition does not show that as a matter of law the plaintiff was negligent and that such negligence was the proximate cause of his injuries.
DECIDED JANUARY 9, 1951. REHEARING DENIED FEBRUARY 9, 1951.
Lebbeus Dekle sued Wright Lopez Inc., Southern Bell Telephone and Telegraph Company and the City of Thomasville for injuries allegedly caused by the negligence of defendants. The petition alleged substantially: that the City of Thomasville granted a permit to Southern Bell for certain excavation work in the city; that Southern Bell employed Wright Lopez Inc., to do such excavation work; that in performing such excavation work Wright Lopez dug a trench eight feet long, two to three feet wide and three to four feet deep at the intersection of South Broad Street and Remington Avenue in the city; that such trench was immediately in front of a grass plot that ran in the middle of Remington Avenue and was across what would be a continuation of the sidewalk on South Broad Street; that the excavation was not guarded by barriers or rails to protect pedestrians and that there was no watchman to warn pedestrians of the dangerous condition that existed; that Wright Lopez, in cutting the pavement and making the excavation, left within the excavation on the side adjacent to the grass plot a walkway of approximately 16 to 24 inches in width, directly in line and within what would be an extension of the South Broad Street sidewalk; that such walkway was an invitation to the public to use same; that on or about May 18, 1948, at approximately between the hours of 10 o'clock and 11 o'clock a. m., while plaintiff was lawfully passing along South Broad Street through the location described, which he had traveled at various times without danger for over 30 years, plaintiff was suddenly, without warning, caused to fall from the walkway and was thrown with great force and violence into the excavation directly on the hard brick and pavement rocks left therein and was severely injured as described; that at and prior to the time of the injuries complained of plaintiff's sight was defective in that he had an optic atrophy of each nerve; that the field of vision of each eye was very restricted and is probably less than five degrees; that it was and is impossible for him to see objects on the side and to see any object on the ground unless he looked directly at it; that this defect is known as tubular vision; that a photostatic copy of his oculist's report is attached; that owing to his defective eyesight, plaintiff saw the walkway over the excavation and that he was looking directly at it and was unaware of the presence of the ditch or trench and did not see it, nor did he realize his danger; that the excavation was not at the place mentioned when he had used the street the day before; that he was unaware of the hazard to him in using South Broad Street; that plaintiff was using due care and caution and that he was free from fault and was not negligent prior to and at the time his fall occurred, and that he could not have avoided said fall by the use of ordinary care and diligence; that the negligence of defendants in not erecting barriers and warnings around said excavation and in not maintaining watchmen to warn users of the street of the dangerous condition of such street was the proximate cause of his injuries. Defendants Southern Bell and Wright Lopez Inc., filed general demurrers to the petition which were overruled and each excepts.
1. Construing the petition most strongly against the plaintiff, it alleges that Southern Bell hired Wright Lopez Inc. as an independent contractor ( McDade v. West, 80 Ga. App. 481, 56 S.E.2d 299), and this is especially so since the unit hired was a corporation. The petition alleges only that Southern Bell had employed Wright Lopez to do the excavation work and does not allege that Southern Bell retained any control or direction over it. Code § 105-502 states: "The employer is liable for the negligence of the contractor — 1. When the work is wrongful in itself, or, if done in the ordinary manner, would result in a nuisance; or, 2. If according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed; or, 3. If the wrongful act is in violation of a duty imposed by express contract upon the employer; or, 4. If the wrongful act is the violation of a duty imposed by statute; or, 5. If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interference; or, 6. If the employer ratifies the unauthorized wrong of the independent contractor." In order to hold an employer liable for the negligence of an independent contractor, one or more of the above-stated requirements must be met. Malin v. City Council of Augusta, 29 Ga. App. 393 ( 115 S.E. 504). The pleadings do not show that any of the above requirements existed. As to 3 above, the permit from the city to Southern Bell giving it authority to do such excavation work did not place any duty upon Southern Bell to do anything other than that the paving cut "shall be replaced by the same type of paving that is now in existence, or equal", and that "The same shall apply to sidewalks and driveways. There will be no trees or shrubbery cut and special caution will be taken by your forces to preserve and replace everything in good condition." The petition does not state a good cause of action against Southern Bell Telephone and Telegraph Company.
2. The defendant Wright Lopez Inc. contends that its general demurrer should have been sustained because the petition allegedly shows on its face that the plaintiff's injuries were caused by his own defective eyesight and his lack of ordinary care and diligence in protecting himself from his own physical defects. Such contention is without merit. The allegations in the petition concerning the plaintiff's faulty eyesight do not show that as a matter of law the plaintiff was negligent in conducting himself as alleged with knowledge of his defective eyesight and that such was the proximate cause of his injuries. Whether or not the plaintiff was negligent in using the streets and sidewalks of Thomasville unaided, and whether or not the plaintiff was negligent in not discovering the negligence of the defendant and avoiding the consequences thereof, are questions for a jury under the allegations of the petition. Chapman v. Macon, 55 Ga. 566, 568. See also 38 Am. Jur. p. 895, § 210. The petition states a good cause of action against defendant Wright Lopez Inc.
The plaintiff in error in each case expressly abandons any exceptions to the overruling of special demurrers.
The court erred in overruling the general demurrer of Southern Bell Telephone and Telegraph Company.
The court did not err in overruling the general demurrer of defendant Wright Lopez Inc.
Judgment reversed as to Southern Bell Telephone and Telegraph Company (Case No. 33296).
Judgment affirmed as to Wright Lopez Inc. (Case No. 33297).
Sutton, C. J., and Worrill, J., concur.