Byrd v. Thompson

• Decision Date: 14 December 1916
• Docket Number: 191.
• Citation: 91 S.E. 100,146 Ga. 300
• Parties: BYRD v. THOMPSON.
• Court: Georgia Supreme Court

91 S.E. 100

146 Ga. 300

BYRD v. THOMPSON.

No. 191.

Supreme Court of Georgia

December 14, 1916

Syllabus by the Court.

A laborer employed to assist in placing joists on the walls of a brick building recently constructed by brick masons to the second story is a fellow servant with such masons about the same business.

Where while he was engaged in placing one end of a joist on the wall, a loose brick therein turned under the laborer's foot, causing him to fall and be injured, the master is not liable on account of the negligence of the mason in not properly placing and securing the brick in the wall (it not appearing that the master knew of the incompetence of the brick mason when he was employed), or because the master failed to warn the laborer of such defect.

A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.

"The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent." "The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not oblige him to keep a building, which they are employed in erecting, in a safe condition and at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants."

Under the evidence the court properly directed a verdict for the defendant.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Brad Byrd against J. B. Thompson. There was a judgment for defendant, and plaintiff brings error. Affirmed.

C. D Maddox, of Atlanta, for plaintiff in error.

J. L Anderson, of Atlanta, for defendant in error.

HILL J. (after stating the facts as above).

The motion for new trial complains that the court directed a verdict for the defendant instead of submitting the case to the jury. The main question in the case is whether, under the pleadings and evidence, the fellow-servant doctrine applies. Section 3129 of the Civil Code provides:

"Except in the case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business." The question therefore arises, Were Byrd and the bricklayers "about the same business," and were they fellow servants at the time of the injury? The bricklayers were not engaged in erection of the wall at the exact time the injury occurred. The evidence tends to show a suspension of the work on the wall, which had been completed to the second story. But, in the view we take of the case, it does not matter whether or not the bricklayers were actually engaged in laying the brick at the time the accident occurred.

They and the plaintiff were fellow servants engaged in the same business of building the house; and unless the master was negligent in the selection of the other servant, or the master had knowledge (and the servant had not) of the defects in the wall and failed to disclose them to the plaintiff, he would not be liable for the injury. There is no evidence to show that the master was negligent in these respects. "A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself." Civil Code, § 3131.

The plaintiff testified, among other things:

"I went there to go to lathing. I went to helping put up these timbers. The lathing was not ready, and he hired me to work in the building until the lathing was ready. * * * That was a brick wall--supposed to be fixed all right. It was just built there and cemented up and mortar put on; brick laid in cement with mortar, like any other brick wall. * * * That brick looked like a part of the wall. I suppose I did not notice any break at all, any more than just a straight wall. I didn't notice any brick sticking out at all; supposed [to] be straight, so far as I saw. I wasn't paying attention to anything like that nohow. I was paying attention to my work. I wasn't thinking about no loose brick. I didn't have no thought of it until it slipped out from under my foot. * * * Mr. Thompson did not tell me before I got the fall that the brick was loose; he never told me anything about it; nobody told me the brick was loose. * * * I have been accustomed to climbing upon houses that were not finished. I helped to build a good many of them. I had worked on brick walls before, many a time. I had laid joists down this way before. I understood pretty well how to do that. * * * I don't remember exactly how thick this wall was. It had been there, I suppose, maybe a week or more. They were building on it when I first went up there. * * * I saw them working on this wall when I was trading about this work. I don't know exactly how long it was completed when I went there, but I know it was not long. The mortar will set and get hard in less time than a week or ten days, if there is nothing on the outside of the brick. * * * I didn't pay any particular attention to this wall at all. I took it for granted that it was all right. I didn't notice if there was any loose brick. I thought it was all right, and went on and did this work."

This evidence does not show that the plaintiff exercised the proper...