DECIDED MAY 23, 1951.
Action for damages; from Fulton Superior Court — Judge Andrews. February 20, 1951.
Louis M. Tatham, J. Richmond Garland, for plaintiff.
Neely, Marshall Greene, Ferdinand Buckley, for defendant.
The petition, as amended, showing affirmatively that the plaintiff's injuries resulted from the consequences of his own negligence and failure to exercise ordinary care for his safety, and that he failed to use due care for his own safety when the alleged negligence of the defendant became apparent to him, or should have been reasonably apprehended, it was proper for the trial judge to dismiss such petition on general demurrer.
DECIDED MAY 23, 1951.
W. C. Fricks brought suit in Fulton Superior Court against the Knox Corporation, seeking to recover damages for certain personal injuries sustained by reason of the alleged negligence of the defendant, through its servant and employee, J. T. Stover. Stover was not sued. The petitioner alleged that the defendant was engaged in the business of erecting prefabricated houses; that prior to April 6, 1949, Curry, as sponsor of the Atlanta National Home Show, purchased three prefabricated houses of the defendant to be erected as an exhibit at Lakewood Park; that prior to said date the said Curry entered into an arrangement with R. A. Lindsey, regarding the erection of these houses, and the work was begun; that Lindsey employed the plaintiff and other workmen to erect these houses under an arrangement whereby Curry was to bear the actual cost of the labor and materials; that under an arrangement between the defendant and Lindsey, the defendant furnished one of its employees, J. T. Stover, who was skilled in the erection of prefabricated structures, to act as technical advisor and to exercise technical supervision over the erection of the houses; that on April 6, 1949, during the course of the erection of these houses, the plaintiff was injured when a panel of one house, being so erected, fell upon and injured him, at which time J. T. Stover, in his capacity as technical supervisor, was directing the erection of this panel; that at this time Stover was directing the work of the men, including the plaintiff, and had complete and sole supervision of the plaintiff and the other workmen, as to the manner and method to be used in the erection of the panel; that this panel was a prefabricated piece to be used in the construction of the house, weighing about 900 pounds, and being around 12 feet high and 18 feet long, and only a few inches in thickness, and when set up on its end presented a flat surface to the wind of approximately 216 square feet, against which even a minor breeze would exert a tremendous pressure; that when set up on its end the panel was unstable and extremely top-heavy and would not stand by itself unless securely braced (italics ours), the square surface of the end of the panel being very small in relation to the size and weight of the panel; that the place where the panel was being erected was in the open, exposed to the wind, and the normal movement of the air against such a large surface increased the already top-heavy character of the panel; that Stover directed the workmen, including the plaintiff, to stand the panel up on its end and without braces and other supports and instructed these workmen to hold it in place themselves; that the workmen raised the panel up on its end as directed but despite their efforts to hold it in place, they were incapable of doing so, and the panel toppled over and fell upon the plaintiff with great force, injuring him; that the panel toppled over so suddenly and unexpectedly that the plaintiff, who was directly under it, could not escape despite all his efforts to do so; that the plaintiff's injury was the proximate result of the defendant's negligence, through its employee Stover, in standing the panel up on its end and attempting to erect it without braces or other supports, in directing the workmen to stand the panel up on its end and erect it without braces and other supports, and in instructing the workmen stand the large and top-heavy panel up on its end and hold it in place with their own strength; that at all times the plaintiff was in the exercise of ordinary care; that at said time the plaintiff was not an employee of the defendant; that J. T. Stover was at such time an employee of the defendant, and was acting within the scope of his employment and in the furtherance thereof; that at no time mentioned in the petition were J. T. Stover and the plaintiff working for a common employer, that at all times mentioned in said suit, the plaintiff was under the general direction and control of Lindsey, his employer, and when injured the plaintiff was working under the temporary supervision of Stover, at the command of his employer, Lindsey; and that the plaintiff sustained severe, painful and permanent injuries disabling him, and his earning capacity was impaired.
The defendant demurred generally to the petition as failing to state a cause of action against it, because it appears from the petition that the plaintiff was not in the exercise of ordinary care for his own safety and that he could have avoided injury to himself by the exercise of such care and because it appears that the plaintiff assumed the ordinary risk of his employment. The defendant also demurred specially to certain paragraphs of the petition.
The trial judge sustained these grounds of special demurrer, giving to the plaintiff 15 days in which to amend. The plaintiff amended and set up that the arrangement between Curry and Lindsey was that the latter was to employ the labor and furnish the materials necessary for the erection of these houses and was to actually erect the same, and Curry was to have no control or supervision over the erection of the houses, but agreed only to bear and reimburse Lindsey for the actual cost of the labor and materials; and that the arrangement between the defendant and Lindsey was that the defendant was to have no control or supervision or interest in the erection of the houses and was to have nothing to do with the erection of the houses the defendant did agree to send Stover to act as a technical advisor and Stover was at all times to remain as an employee of the defendant and Lindsey was to have no control or supervision over him whatsoever.
The defendant demurred to the above amendment and renewed its demurrers to the petition as amended, and set up that the petition as amended shows that the plaintiff was not in the exercise of ordinary care for his own safety and that by the exercise of such care he could have avoided any injury to himself, and also because the petition, as amended, shows that the plaintiff assumed the risk of the injuries so sustained by him.
Thereupon the plaintiff again amended his petition. From this amendment it substantially appears that the erection of such houses requires expert knowledge; that the plaintiff was unskilled and inexperienced in the erection of prefabricated houses and had never erected or helped erect such a house and knew nothing of the manner and method to be used in the erection of such houses or of the dangers incident to such erections; that at all times mentioned in the petition the defendant retained control and supervision of Stover; that at no time did Lindsey have any control or supervision over Stover; that at all times the plaintiff was under the control and supervision of Lindsey and Lindsey was his sole employer; that at no time did the defendant have any control or supervision of the plaintiff; that at no time mentioned in said petition did Stover have any control or supervision over the plaintiff excepting that Lindsey instructed the plaintiff that Stover was an expert and would show them how to proceed in erecting said houses, including the panel, and that they were to erect said houses in the manner pointed out to them by Stover; and that Stover in directing and pointing out to the plaintiff the way to erect said houses, was doing so not as their employer or boss but as a technical expert.
Thereupon the court sustained the general demurrer and dismissed the petition as amended. To this judgment the plaintiff excepts.
The petition, as amended, sets out that the employee of the defendant Stover was furnished to the employer of the plaintiff Lindsey, the person erecting these houses and furnishing the labor and material for their erection, for the purpose of acting as a technical expert and advisor in the erection of such prefabricated houses, and that this employee of the defendant, at the time the plaintiff was hurt, was directing the plaintiff and other workmen of Lindsey how to erect the prefabricated parts going to make up a prefabricated house, and the plaintiff charges that in so doing, this employee of the defendant directed these men, including the plaintiff, to stand upon its end a large flat part or panel, some 12 feet high by 18 feet long, and only a few inches thick, which weighed approximately 900 pounds, and which presented a large flat surface to the wind, and which was unstable and would not stand by itself, that is, without being properly braced, and that this panel was top-heavy and therefore unstable and when exposed to a slight wind pressure, toppled over and suddenly fell upon the plaintiff, injuring him, and that this employee of the defendant was negligent in "standing the panel up on its end and attempting to erect it without braces or other supports," "in directing the workmen to stand the panel up on its end and erect it without braces or other supports," and "in instructing the workmen to stand the large, heavy and top-heavy panel up on its end and hold it in place with their own strength."
In order for the defendant to be liable in this case it is necessary that it appear from the allegations of the petition as amended not only that, at the time the plaintiff was injured, Stover, the technical expert furnished by the defendant to plaintiff's employer, engaged in furnishing the labor and material and erecting said houses, was acting as such technical expert and advisor as an employee and servant of the defendant but that he was acting within the scope of his employment at the time he directed the plaintiff and other workmen to raise the panel, without having the same braced, supported, or otherwise secured to prevent its toppling over. Conceding that it appears from the plaintiff's petition, as amended, that Stover was an employee of the defendant in giving technical advice as to the erection of this structure, it is not alleged that it was necessary in the giving of such technical advice to direct the workmen, including the plaintiff, to raise this panel, that is, it does not appear that the raising of this panel constituted a part of the technical advice proper and necessary to be given by this expert. It is true that the petition alleges that Stover was acting within the scope of his employment at the time but properly and fairly construing the allegations of the petition, as amended, it appears that this was not a type of work in the erection of this house which required technical advice but that it consisted in common labor in raising a heavy panel, which was patently top-heavy, and was obviously dangerous and likely to topple over where it was not securely braced and supported. It does not appear from the petition that the plaintiff did not know, but on the contrary properly construed it appears that the plaintiff did know this, or by the exercise of proper care ought to have known thereof.
It also appears that this obvious danger was just as apparent to the plaintiff as it was to Stover. That this panel would be likely to topple over, if it was raised and attempted to be placed or set without supports and braces, as Stover directed the workmen to do, was a matter that was known to all men who could see the same, and particularly to those engaged in erecting houses. The plaintiff was bound to take notice of the ordinary and familiar laws of nature to which his work related, and that a wide panel, 12 feet by 18 feet, weighing 900 pounds, and only a few inches thick, was top-heavy and if raised and sought to be placed or set in place without secure braces and supports, would very likely topple over and fall. This was apparent to any adult person, and is but an application of the laws of nature to a plain and open fact. The plaintiff could see that this was dangerous and that he would likely be injured if he undertook to raise this panel, under the circumstances, just as well as the defendant's employee could. If the defendant's employee was negligent, then this negligence was known to the plaintiff, or should have been by the exercise of due care. The plaintiff clearly failed to exercise good judgment when he obeyed the direction of Stover to raise and set this panel. It, therefore, appears affirmatively from the petition, as amended, that the plaintiff was injured, as a result of his own failure to exercise ordinary care, when Stover's negligence was clearly apparent to him. A person cannot undertake to do an obviously dangerous thing, even though directed by another, under whom he is working, to do so, without assuming the risks incident thereto, and without himself being guilty of such a lack of due care for his own safety as to bar him from recovery if he is injured in carrying out such directions. See, generally, Worlds v. Ga. R. Co., 99 Ga. 283 ( 25 S.E. 646); Roberts v. Ethridge, 73 Ga. App. 400 ( 36 S.E.2d 883); Holman v. American Automobile Ins. Co., 201 Ga. 454, 460 ( 39 S.E.2d 850). "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Code § 105-603. Where the danger is apparent, or is reasonably to be apprehended, the rule requiring the plaintiff to avoid the consequences of the defendant's negligence applies. Collins v. Augusta, Aiken c, Corp., 13 Ga. App. 124(2) (78 S.E. 944).
There is nothing in the case of Bibb Mfg. Co. v. Souther, 52 Ga. App. 722 ( 184 S.E. 421), and similar cases to the contrary of what we are ruling here. It is not necessary, in the view which we take of this case, to determine whether Stover was the employee of the defendant at the time he directed the plaintiff to raise this panel, and whether, if he was, he acted within the scope of his employment in doing so, that is, whether this was a part of the technical advice to be given by him to the workmen on behalf of the defendant. See also Albert v. Hudson, 49 Ga. App. 636 ( 176 S.E. 659); Restatement of the Law of Agency, Vol. 1, page 501. The plaintiff was injured as a result of his own failure to exercise due care for his own protection and safety when Stover told him to do a palpably dangerous thing, the danger being just as apparent to the plaintiff as it was to Stover.
The petition, as amended, in our opinion admits of no other reasonable construction, and the rule that such questions are ordinarily for the jury is not applicable here, but the case is one of those plain and unmistakable cases, excepted from the general rule.
The plaintiff sought compensation for this injury, setting up that the Knox Corporation was liable as an employer and that he was injured within the scope of his employment and that the injury arose out of the same. This court held that he was not an employee of the defendant and reversed both the trial court and the director of the Workmen's Compensation Commission holding to the contrary and awarding compensation to the plaintiff. See Liberty Mutual Ins. Co. v. Fricks, 81 Ga. App. 727 ( 59 S.E.2d 671). This decision is not material here.
Applying the foregoing, the petition, as amended, did not set out a cause of action against the defendant, Knox Corporation, for the alleged negligent acts of Stover, and the trial court did not err in dismissing the same on general demurrer.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.