Benefield v. McDonough Const. Co. of Ga.

• Citation: 106 Ga.App. 194,126 S.E.2d 704
• Decision Date: 15 June 1962
• Docket Number: No. 39358,Nos. 1,2,39358,s. 1
• Parties: C. H. BENEFIELD v. McDONOUGH CONSTRUCTION COMPANY OF GEORGIA. & 3
• Court: Georgia Court of Appeals

Page 704

126 S.E.2d 704

106 Ga.App. 194

C. H. BENEFIELD v. McDONOUGH CONSTRUCTION COMPANY OF GEORGIA.

No. 39358.

Court of Appeals of Georgia, Division Nos. 1, 2 & 3.

June 15, 1962.

Rehearing Denied June 29, 1962.

Syllabus by the Court.

1. The petition here shows that the injuries the plaintiff sustained were proximately caused by his own negligence and not that of the defendant.

2. The fact that a petition is held on appeal to be fatally defective for lack of one essential allegation is not to be interpreted as meaning that it may not be fatally defective for other reasons even though the essential allegation to which the court pointed in the first case may have been added later by amendment.

3. When construing a petition on general demurrer and in absence of allegations to the contrary, there is no presumption that an employer and his employee are under the provisions of the Workmen's Compensation Act.

This is an action for damages caused the plaintiff by the alleged negligence of the defendant. The amended petition charged that the defendant was engaged in the construction of a repair shop and hangar; which was a large building some 200 feet or more in width and in depth; the floor being constructed of concrete varying in thickness from six to twelve inches; that the duties of plaintiff's employment required that from time to time he mount and ascend rolling portable scaffolds consisting of metal frames approximately thirty feet in height and approximately seven feet square, being mounted on hard rubber casters or wheels, approximately six inches in diameter, there being one caster at each corner of the base of the scaffold, with four casters on each scaffold; that plaintiff placed one of the rolling scaffolds in position on the concrete floor of the repair shop some ten or twelve inches from the base of the west wall, with one side of the scaffold placed about twenty inches south of a cut or depression in the floor of the hangar into which no concrete had at that time been poured; that the cut or depression in the floor was approximately six inches in depth with the top edge of the rim being approximately six inches higher than the dirt floor or bottom of the depression; that the depression was approximately eight or nine feet in width and eleven to twelve feet in length; that plaintiff mounted and climbed to the top of the The defendant's general demurrer to the amended petition was sustained to which ruling the plaintiff excepted.

scaffold, and as he reached the top, the casters or wheels of the scaffold began to roll in the direction of the depression in the floor; that, before he could descend, the two wheels nearest rolled into the depression in the floor surface causing the scaffold to become unbalanced and precipitating the plaintiff onto the concrete floor; and resulted in the injuries for which damage was sought.

Calhoun & Calhoun, Merrell H. Collier, Atlanta, for plaintiff in error.

Lokey & Boweden, Hamilton Lokey, Atlanta, for defendant in error.

BELL, Judge.

1. The petition alleges that the plaintiff placed a thirty-foot high scaffold mounted on wheels and capable of rolling, on a concrete floor only twenty inches distant from a six inch cut or depression in the floor. It should have been apparent to the plaintiff that a slight rolling of the scaffold could cause it to enter the depression, tilt, and cause him to fall thirty feet to the concrete floor. It also should have been foreseen by the plaintiff that the mere weight of his body at such a height might create an imbalance sufficient to cause the scaffold to roll for the short distance of twenty inches unless he knew, as a matter of fact, that the floor was perfectly level. The plaintiff could not assume the floor was level nor would a cursory examination protect him, for he should have foreseen, as a matter of common knowledge, that a floor might vary to some degree in its horizontal plane. The exercise of ordinary care would have required him, under all the facts alleged, to have taken precautions sufficient to prevent the scaffold from rolling. The scaffold was under the plaintiff's control. See generally, Dacus v. Dickinson Trust Co., 65 Ga.App. 872, 16 S.E.2d 786; 163 A.L.R. 590 N; Hendricks v. Jones, 28 Ga.App. 335, 111 S.E. 81; 41 A.L.R. 968 N; 58 A.L.R.2d 1186 N; Ogain v. Imperial Cafe, 25 Ga.App. 415, 103 S.E. 594; Fricks v. Knos Corp., 84 Ga.App. 5, 10, 65 S.E.2d 423; Mattox v. Atlanta Enterprises, 91 Ga.App. 847, 87 S.E.2d 432; 55 A.L.R.2d 911 N.

The petition clearly shows that the building was still under construction. The plaintiff, in the exercise of ordinary care, when he placed this thirty-foot high scaffold twenty inches from a hole of such large dimensions in the incompleted floor was bound, as a matter of law, to have notice of the existence of the depression in the floor. 'Since under a proper construction of the petition against the pleader the plaintiff had notice of the incompleted section of the floor, the defendant was under no duty to cover the imcomplete section to protect a workman with notice of the danger.' McDonough Construction Co. v. Benefield, 104 Ga.App. 367, 370, 121 S.E.2d 665, 668. It would be ridiculous to hold that a contractor is negligent in having an unfinished area in an incompleted floor in a building in process of construction. While there may be particular instances which might make this negligence, none are apparent in the present case.

Furthermore, we consider it not to be negligence to construct a floor with such a slight variance approximating one inch in twenty feet from complete levelness.

Standing alone, such a gradual slope in the floor did not of itself constitute conduct on the part of the defendant which threatened an unreasonable risk of harm to persons on the premises. Cf. 2 Restatement, Torts, § 282. Without the negligent act of the plaintiff in placing this towering, rolling scaffold within a few inches of the unfinished portion of the floor, no injury would have resulted. Where the injury 'could not reasonably have been expected to result therefrom, or would not have resulted therefrom, but from the interposition of some independent unforeseen cause, the defendant's such antecedent wrongful act or If we are correct in our viw that such a gradual slope in the floor did not involve any foreseeable risk of harm to third persons, the defendant was not negligent. Even if this be an erroneous view, and such conduct is negligence, the negligent act of the plaintiff was an independent, unforeseen cause, and the sole legally efficient cause of the injuries sustained. The defendant is not required to anticipate or foresee and to provide against that which, according to common experience of mankind, under the circumstances alleged, is unusual and not likely to happen, or is only remotely and slightly probable. 'A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior on remote cause and the injury a distinct, suecessive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.' Whitaker, supra, 69 Ga.App. p. 715, 26 S.E.2d p. 545.

omission, if any, would not be the proximate cause of the injury complained of. If the injury could not be reasonably anticipated as the probable result of an act of alleged negligence, such act is either a remote cause or no cause.' Whitaker v. Jones, McDougald, Smith, Pew & Co., 69 Ga.App. 711, 715, 26 S.E.2d 545, 548. Further, if, after a wrongful act, a new cause intervened of itself sufficient to stand as the cause of the injury, the former will be considered too remote. Irwin v. Ga. Power & Light Co., 84 Ga.App. 665, 67 S.E.2d 151; 4 [106 Ga.App. 197] Mercer L.Rev. 173. Georgia Power Co. v. Kinard, 47 Ga.App. 483, 170 S.E. 688. Cf. Millirons v. Blue, 48 Ga.App. 483, 173 S.E. 443.

While normally questions of diligence and negligence are peculiarly for the jury, Norton v. Georgia Ry. & Power Co., 28 Ga.App. 167, 110 S.E. 459; Food Fair Stores, etc. v. Pound, 102 Ga.App. 32, 115 S.E.2d 645, nevertheless, where as here, the answer to the question whether there was negligence is palpably clear, plain, and indisputable, the court will solve it on demurrer. Georgia Pacific Ry. Co. v. Richardson, 80 Ga. 727, 7 S.E. 119; Ford v. S. A. Lynch Corp., 79 Ga.App. 481, 54 S.E.2d 320; Hill v. Davison-Paxon Co., 80 Ga.App. 840, 57 S.E.2d 680.

The petition before us clearly discloses that plaintiff's own negligence and not that of the defendant caused his injury.

The trial court did not err in sustaining the defendant's demurrer to the petition as amended.

2. The plaintiff contends that, since he has amended the petition to allege that the proximate or a contributing proximate cause of the rolling of the scaffold was the slant or incline in the floor, that the petition now states a cause of action. In the prior appearance of this case before this court it was held that in the absence of this essential allegation the petition was considered as alleging that the cause of the scaffold rolling was one with which the defendant was not chargeable. McDonough Construction Co. v. Benefield, 104 Ga.App. 367, 370, 121 S.E.2d 665.

The fact that a petition is held to be fatally defective for lack of one essential allegation is not to be interpreted as meaning that it may not be fatally defective for other reasons even though the essential allegation to which the court pointed in the first case may have been added later by amendment. See Gordon County Broadcasting Co. v....