Atlanta Enter.S Inc v. James
| Decision Date | 27 January 1943 |
| Docket Number | No. 29826.,29826. |
| Citation | 24 S.E.2d 130 |
| Parties | ATLANTA ENTERPRISES, Inc. v. JAMES. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The petition set forth a cause of action.
2. The assignment of error on the admission of testimony showing an objection
that the evidence was irrelevant and immaterial is insufficient. Furthermore similar evidence was admitted without objection.
3, It was not error to refuse to give in charge to the jury the request shown in division 3 of the opinion.
4. The evidence authorized the verdict.
Error from Superior Court, Fulton County; A. L. Etheredge, Judge.
Action by Paul James against Atlanta Enterprises, Inc., for personal injuries allegedly resulting from defendant's negligence. Defendant's general demurrer to the petition was overruled and trial resulted in verdict for plaintiff, and defendant brings error to overruling of the demurrer and of its motion for new trial.
Affirmed.
Paul James sued Atlanta Enterprises, Inc., to recover damages for personal injuries alleged to have resulted from the negligence of the defendant. The petition alleged that plaintiff was a mechanic employed by the machine shop; that the defendant employed the Capital City Machine Shop to make repairs on an air conditioning machine located in the Fox Theater which was operated by the defendant; that plaintiff was instructed by his employer to repair the machinery; that plaintiff, in company with Frank Payne, his helper, reported to the office of the engineer of the theater and found a Mr. Brand, an assistant engineer, in charge; that Brand showed plaintiff the machine which was out of repair and told him that a stuffing box on it would not screw tight and allowed oil to drop; that the stuffing box was located underneath a cylinder which when the machine was in operation, filled with gas of some kind which was under pressure in the cylinder; that the machine was so constructed that if the stuffing box was removed while the cylinder to which it was attached was under pressure the gas in the cylinder would cause the stuffing box to be violently discharged from the end of the cylinder; that the machine did not have a gauge or other instrument to indicate whether or not there was pressure in the cylinder when it was not in operation; that Brand was thoroughly familiar with the machine and knew the danger of repairing it while there was pressure in the cylinder above the stuffing box; that Brand told plaintiff the machine was not in operation, had not been for several weeks, and that it was ready and safe for petitioner to begin his work; that relying on the representation of Brand and while Brand was watching him, petitioner started to unscrew the stuffing box and had partially unscrewed it and was engaged in removing a steel plate underneath the box when there was a sudden explosion, or expansion or rush of gas out of the cylinder above said stuffing box, forcing the stuffing out of the end of the piston and forcing or throwing said stuffing violently down upon said metal plate which petitioner was in the act of removing, shattering the plate and cutting off the first joint and one-half of the second joint of the index finger of petitioner's right hand. That defendant was negligent in that Brand, while acting within the scope of his authority as defendant's agent and servant, represented to petitioner that there was no pressure in said cylinder, when, in fact, he did not know whether or not there was any pressure in said cylinder and did not know whether or not the pressure had been entirely withdrawn or bled off from said cylinder; and, in fact, the pressure had not been drawn or bled off and the cylinder was not safe for petitioner to begin his work on said machine; that defendant was negligent in that Brand, while acting within the scope of his duties and authority as defendant's agent and servant, affirmatively and unequivocally represented to petitioner that the machine was ready and safe for petitioner to begin his work, when in fact the pressure had not been bled off, from said cylinder and it was not safe for petitioner to begin his work.
The defendant filed a general demurrer to the petition which was overruled. The trial resulted in a verdict for the plaintiff. The defendant excepts to the overruling of the general demurrer and of the motion for a new trial.
Marvin G. Russell, of Atlanta, for plaintiff in error.
James A. Branch, Thomas B. Branch Jr., and James A. Branch, Jr., all of Atlanta, for defendant in error.
FELTON, Judge (after stating the foregoing facts).
1. The demurrers were properly overruled. The petition alleged that Brandrepresented to plaintiff that there was no pressure in the cylinder and that it was safe for plaintiff to begin his work, and that plaintiff did not know there was pressure in the cylinder and that the machine was not ready for him to begin his work. These and other allegations were sufficient to show superior knowledge, actual or constructive, of the latent danger, on the part of the defendant, and failure to warn James of it, and were therefor sufficient to show a cause of action. Huey v. Atlanta, 8 Ga.App. 597, 70 S.E. 71.
2. Ground 1 of the amended motion complains of the admission of the following testimony of the witness Nix: When this evidence was offered counsel stated: "We object to that on that ground that it is not a question of custom; it is a question of what actually happened in this case; and we move to exclude the question as now put on the ground that it is irrelevant and immaterial." It has been repeatedly ruled that an objection that evidence is "irrelevant and immaterial" is insufficient. Laney v. Barr, 61 Ga.App. 145, 6 S.E.2d 99, 100. There was no objection on the ground that the custom had not been pleaded by the plaintiff and that evidence offered to prove its existence would involve the presentation of a theory of liability which the defendant had not been called on by the pleadings to meet. There is no merit in this ground. The ground contains the statement: "The admission by the court of this testimony was harmful and injurious to the defendant, not only because of the objection then and there made, but for the further reason that * * *." This does not help the situation. All the objections which are to be relied on must be made when the evidence is offered. Objections can not be urged for the first time in the motion for new trial. Mickle v. Moore, 193 Ga. 150, 17 S.E.2d 728. Another reason why the ground is without merit is that later, similar evidence was introduced without objection. New York Life Insurance Co. v. Ittner, 62 Ga.App. 31(4), 8 S.E.2d 582.
3. Ground 2 complains of the refusal of a request to charge the jury as follows: "A machinist employed by another to repair machinery, and having knowledge that some of it is imperfect and needs repairing, and undertakes to repair the machinery himself, or in company with another coemployee, takes the risk of discovering the condition of the machinery at the time he attempts to repair it, such risk being incident to his vocation, and that the incompetency or negligence of other employees, agents or officers of the defendant resulting in putting the machinery out of order and rendering it...
To continue reading
Request your trial