Babcock Bros. Lumber Co v. Johnson

• Court: Supreme Court of Georgia
• Writing for the Court: LAMAR
• Citation: 120 Ga. 1030,48 S.E. 438
• Parties: BABCOCK BROS. LUMBER CO. v. JOHNSON.
• Decision Date: 12 August 1904

48 S.E. 438
120 Ga. 1030

BABCOCK BROS. LUMBER CO.
v.
JOHNSON.

Supreme Court of Georgia.

Aug. 12, 1904.

INJURY TO EMPLOYE—ORDINARY DILIGENCE— APPLIANCES—INSPECTION—PLEADING.

1. Ordinary diligence requires a master to furnish to his servant appliances reasonably suited for the uses intended.

2. But the law does not exact of the master the extraordinary diligence which would be demanded if it were required that instrumentalities intended for one use should be safe and suitable for every unintended use to which they might be casually or unexpectedly applied.

3. If one is not chargeable with negligence because an appliance fails to serve a purpose not intended, neither is he chargeable with negligence because he has omitted to inspect so as to discover that it was not suited for such unexpected and unintended use.

4. A master cannot send an employe to work in that which is known to be a trap, without being responsible for the resulting damage.

5. If the master requires a servant to use, or knows that he will necessarily use, an appliance originally intended for another purpose, he will thereby he held responsible, as if the instrumentality had originally been intended for such new use.

6. Since pleadings are to be most strictly construed against the pleader, an allegation that the master knew, or ought to have known, of the defects and dangers, is equivalent to a charge of implied notice, rather than of actual knowledge.

7. The plaintiff, a minor, was employed to labor among rafters and open timber work. To steady or sustain himself, he suddenly grasped an insecurely fastened brace, designed as a support for the roof, but not intended for a handhold. The brace fell, and he with it. There was no allegation that the brace was not reasonably safe for the purposes for which it was intended, nor that the defendant knew that it was insecure, or knew of any fact which would have suggested that it was dangerous; nor was it al-

leged that it knew that the plaintiff would necessarily or naturally rely upon the brace as a support. Held, that the petition did not charge actionable negligence, or set out a cause of action against the defendant.

(Syllabus by the Court.)

Error from Superior Court, Miller County; H. C. Sheffield, Judge.

Action by A. H. Johnson, by his next friend, against the Babcock Bros. Lumber Company. Judgment for plaintiff. Defendant brings error. Reversed.

The petition alleges that Johnson was em-ing carpenter work among the rafters and open timbers of the boiler room of the defendant; that, having put in a timber and fastened it, he attempted to pass along a "plate" or beam in order that be might reach the place where the other end of the timber 1 was to be nailed; that, in order to support himself in passing, as it was necessary for him to do in order to perform the work in which he was engaged, he caught hold of a brace, one end of which rested on a beam, running thence diagonally to the roof; that this brace appeared to be securely fastened, and he believed it to Be securely fastened, but it was insecurely laid in place, and when he caught hold of it for the purpose of supporting himself, as it was necessary for him to do in passing along the beam, it fell, and he with it; that be did not know, and by the exercise of ordinary care could not have discovered, the condition of the brace; that it had been left in this condition for about two years; that it was part of the permanent structure; that the defendant was negligent in allowing the brace to remain apparently secure when it was not, in allowing and directing him to work upon the beam to which it was supposed to be fastened without informing or warning him of its condition: that the defendant was under the duty of providing him a safe place in which to work, and to make reasonable provisions for his protection, and, by the exercise of ordinary care, could have rendered the place safe,

[48 S.E. 439]

that he was inexperienced, and under the age of 18 years; that the company knew or ought to have known of the dangers and defects mentioned above, and, although under the duty of warning him, did not do so; and that he was in the exercise of ordinary care. The defendant demurred on the ground that the petition does not set out a cause of action. It excepts to the overruling of the demurrer. In its brief it contends that there was no allegation that the brace was not reasonably suited for the uses intended.

Russell & Fleming and Bush & Stapleton, for plaintiff in error.

A. G. Powell, for defendant in error.

LAMAR, J. (after stating the foregoing facts). The defendant was altering the roof to its boiler house. The plaintiff (a minor, and inexperienced), while working among the rafters, fastened one end of a piece of timber, and, in order to reach the point where the other end had to be nailed, attempted to walk along a narrow beam. In doing so he came to a brace which ran from the beam diagonally to the roof. The brace appeared to be fastened. In fact, it was insecure. In endeavoring to pass around it he caught hold of the brace. It fell, and he with it In the suit for the resulting personal injuries it was charged that the master was negligent in maintaining the brace in this insecure condition, and in ordering the plaintiff to this work without warning him of the danger or notifying him that the timber was loose. It is alleged that the plaintiff was ignorant of the condition of the brace, and by the exercise of ordinary care could not have discovered it but that the company knew, or ought to have known, of the dangers and defects mentioned.

1-5. The master is responsible for the consequences of his negligence. But he is not an insurer, nor is he liable absolutely and at all events for every injury which is sustained by his employs. The master is not bound to exercise that extraordinary diligence which necessarily would be demanded if he were obliged to make every instrumentality safe for any and every use to which it might suddenly and unexpectedly be applied. His duty and diligence is primarily to be decided by considering whether he has furnished an appliance or instrumentality reasonably safe and suitable for the purpose for which it is intended or might naturally be expected to be used. This duty may extend beyond the mere furnishing of the article, and involve the obligation of inspection and maintenance. So that in such cases he may be liable not only for injuries occasioned by defects of which he knew, but by those of which he ought to have learned in making the required inspection. In the performance of the absolute duty to furnish an employe with suitable appliances, and to warn him of dangers connected with the employment the master can not escape from responsibilities by negligent ignorance. Civ. Code 1895, § 2611. But the liability then springs out of the duty, and applies where he is under an obligation with reference to the instrumentality being used by the party who is injured. Where there is no duty to furnish, there is no responsibility for failure to furnish. Nor is there, in such case, any obligation to inspect in order to see whether it is fit for the unintended use. Here, from the petition and the diagram attached to it, it is perfectly evident that the brace was not intended as a handhold, but only to assist in supporting the roof. If, in consequence of the brace being unfastened, the roof had fallen, and injured the plaintiff, or persons lawfully in the house, it would have been competent to show that the owner had not furnished a proper instrumentality, or was negligent in its maintenance, or was negligent in failing to know of the insecurity. All these facts would have been admissible in determining whether he had performed his duty to those who had a right to rely on his furnishing a safe roof. The...