Babcock Bros. Lumber Co. v. Johnson

• Decision Date: 12 August 1904
• Parties: BABCOCK BROS. LUMBER CO. v. JOHNSON.
• Court: Georgia Supreme Court

48 S.E. 438

120 Ga. 1030

BABCOCK BROS. LUMBER CO. v. JOHNSON.

Supreme Court of Georgia

August 12, 1904

Syllabus by the Court.

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 employé 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 alleged 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.

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.

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 employé. 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 employé with suitable appliances, and to warn him of dangers connected with the employment, the master cannot 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 brace was intended to support a roof. It must be kept safe for that purpose. But when it was suddenly applied to another use, and proved unsuited to that use, the owner cannot be held responsible for its failure to serve the new purpose to which it was unexpectedly put. So to hold would be to rule that he was, in the first instance, bound to exercise extraordinary diligence. If, therefore, the brace was not intended as a handhold, the company cannot be charged with negligence because, while gravity or pressure enabled it to support the roof without a fastening, it failed to carry the weight of a man pulling at another angle. And if, relatively to the plaintiff, there was no duty to furnish it as a handhold, there was no negligence in failing for two years to inspect to see whether it was suited as a handhold. "The mere fact that an appliance happens to be placed where it can be used for the performance of the work which the injured servant undertook to do with it does not warrant the inference that the master intended that he should use it as he did, or the inference that he was in fault in not knowing that he was likely to do so. Any other rule would involve the consequence that every master who leaves any implement upon his premises which his servants cannot safely use for every purpose which suits their convenience sets a trap for them." 1 Labatt's Master & Servant, § 26. The authorities on which the defendant in error relies do not answer East Tenn. R. Co. v. Reynolds, 93 Ga. 570, 20 S.E. 70, where it was held that the master was not responsible to one who was injured by reason of a defect in a cross-tie, when the cross-tie was being used for a purpose not intended. See Hamilton v. R. & D. R. Co., 83 Ga. 346, 9 S.E. 670. Similar rulings have been made in cases almost identical with that at bar; for example, where a cornice fell when subjected to the unexpected use of supporting painters, or a window mullion fell when an employé rested thereon for the purpose of putting in a pane of glass, or where one grasped a slat not intended as a handhold, or leaned against a lathe intended to steady the supports of a scaffold, or stepped through the cloth covering of a sloping conveyor, or lost his balance in grasping a wooden "horse" used in hauling up buckets; and in other similar cases referred to in 1 Labatt's Master & Servant,§ 26, p. 60, note 2. A case much in point is Quirouet v. Ala. Great Southern R. Co., 111 Ga. 317, 36 S.E. 599, where a round standard was placed in a square socket. It was intended to prevent pipes from rolling off a car, but not intended for the purpose of being used by employés in mounting the car.

6. Nor is the allegation that the company "knew or ought to have known of the defects and dangers mentioned above," by itself, sufficient to save the case; for, construing the petition as it must be construed--most strongly against the pleader--it does not charge actual knowledge, but only amounts to the alternative allegation of implied notice. And even in this respect it states no fact, but seems rather to be a conclusion resulting from the further allegation that the brace had remained unfastened for more than two years. Compare Allen v. Augusta Factory, 82 Ga. 79, 8 S.E 68. At most the petition can be treated only as charging implied notice. Southern Ry. v. Bunt (Ala.) 32 So. 508. Where the master is under an absolute duty to furnish appliances suitable for the use for which they are intended, or to warn of the dangers attendant upon the employment, he cannot hide behind the want of knowledge which he should have acquired. In such cases ignorance itself may be negligence. Civ. Code 1895, § 2611. But the authorities are not uniform in declaring when implied notice will be sufficient to charge one with negligence. All recognize that there may be instances in which only actual knowledge will serve to impose a liability. Ignorantly to send one into danger may amount to a want of forethought. Knowingly to send one into danger may amount to recklessness, wantonness, or even criminality. The...