Callahan v. Atl. Ice &. Coal Corp.

• Decision Date: 18 December 1924
• Docket Number: (No. 15690.)
• Citation: Callahan v. Atl. Ice &. Coal Corp., 126 S.E. 278, 33 Ga.App. 330 (Ga. App. 1924)
• Court: Georgia Court of Appeals
• Parties: CALLAHAN v. ATLANTIC ICE &. COAL CORPORATION.

33 Ga.App. 330

126 S.E. 278

CALLAHAN

v.ATLANTIC ICE &. COAL CORPORATION.

(No. 15690.)

Court of Appeals of Georgia, Division No. 2.

Dec. 18, 1924.

Rehearing Denied Jan. 17, 1925.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by Mrs. Elizabeth Callahan against the Atlantic Ice & Coal Corporation. Judgment for defendant, and plaintiff brings error. Affirmed.

George & John L. Westmoreland and Chas. G. Reynolds, all of Atlanta, for plaintiff in error.

Spalding, MacDougald & Sibley, and McDahiel & Neely, all of Atlanta, for defendant in error.

BELL, J. Mrs. Elizabeth Callahan brought suit against Atlantic Ice & Coal Corporation for the death of her husband, alleged to have been caused by the defendant's negligence as his master or employer. It is averred that on or about November 4, 1920, while her husband was employed at the defendant's West End plant in the city of Atlanta, he was walking in the engine room, attempting to cross over a wooden floor that protected the top of a hot oil vat, and as he stepped upon it, the same broke through, precipitating his leg into the boiling oil, thereby burning him so severely that he lingered until July 1, 1921, at which time he died as a result of said burn." It is further alleged, among other things, that "it was the defendant's duty to provide a safe flooring for the use of all its employees in said engine room; that the defendant negligently failed to do so, and allowed the planks to remain in place a very long time and until they had rotted and become insecure for the purpose for which installed; that [decedent] was ignorant of the rotten condition of said planks, and he did not have equal means with the master in ascertaining said defects; that said rotten planks constituted a concealed danger that could not have been discovered by the exercise of any degree of care chargeable to her husband under the law"; and that the defendant was "negligent in the failure to provide her husband with a safe place to work."

The answer contained a general denial of the plaintiff's averments. Upon the trial, the plaintiff offered evidence and rested. Evidence was then introduced by the defendant, followed by rebuttal testimony in behalf of the plaintiff. After hearing all the evidence by both sides, the court directed a verdict in favor of the defendant. The plaintiff brings a bill of exceptions complaining of this ruling, with reference to which the only assignment of error is as follows:

"Plaintiff then and there excepted, and now excepts, and assigns the same as error, and says that under the evidence introduced the said case should have been submitted to the jury to pass upon the issues of fact thereof under the charge of the court."

There were other proceedings in the court below, and error is assigned upon other rulings, but in our view of the case further reference to these is unnecessary, because, assuming that all other questions except those hereafter discussed should be decided in favor of the plaintiff in error, we should still think that the direction of the verdict in favor of the defendant should be affirmed, for the reasons given in the opinion below.

1. The master is bound to exercise ordinary care in furnishing his servant a safe

place in which to work, but the servant must exercise a like care in discovering any obvious defects therein. It is the servant's duty to observe every visible and manifest defect which would render his work dangerous. If his opportunity to make discovery of a defect in the place of work is equal to that of the master, the master is not liable for injuries caused thereby. The burden was upon the plaintiff to show that her husband, as alleged, did not have equal means with his master of discovering the rotten condition of the plank, and that by the exercise of ordinary care he could not have known thereof. Chenall v. Palmer Brick Co., 117 Ga. 106 (4), 43 S. E. 443; Beck v. Albert N. Tumlin Co., 13 Ga. App. 618 (2), 79 S. E. 587.

The strongest, if not the only, evidence by which the plaintiff could possibly claim to have carried this burden was the testimony of Bob Smith, one of the defendant's employees, who happened to be present at the time the decedent was injured. This witness testified:

"I remember when Mr. Callahan got hurt, and I was there. He was burned in that hole in the boiler room. * * *The plank broke— is what caused him to get down into that hole. He stepped on the plank like he had always been doing, and it broke, and he fell in the hole. * * * i had seen that plank there before. It was rotten, not sound, and I didn't know it was rotten. It had been there so long it was rotten. * * * I seen the plank after it broke. It was a long plank, right over the hole, and when he stepped on it it gave way. It was a rotten plank."

"Whether the plaintiff had the same opportunity as the defendant of knowing of the defects alleged and proved would depend upon the character of such defects—whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be held bound to discover the fact sooner than the servant, because the duty of inspection rests on the master, and not on the servant. In a case of latent defects— those which are only discoverable by proper inspection—the master is necessarily held to a' higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223, 62 S. E. 1018; Cedartown Cotton Co. v. Miles, 2 Ga. App. 83, 58 S. E. 289." Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324, 63 S. E. 244, 247; Rountree v. Seaboard Air Line Ry., 31 Ga. App. 231, 120 S. E. 654.

There is no evidence whatsoever that the defect was not obvious and not as easily known to the servant as to the master. It is merely shown that the plank was rotten and that the witness Bob Smith, who, it appears was employed in another department, did not know it was rotten. The plaintiff was not entitled to a verdict in the absence of proof that the defect was not discernible by a superficial observation—that it was not obvious—in the ordinary use to which the plank was put. See International Cotton Mills v. Carroll, 22 Ga. App. 26 (lb), 95 S. E. 472; Crown Cotton Mills v. McNally, 123 Ga. 35 (3), 51 S. El 13; Holland v. Durham Coal Co., 131 Ga. 715 (2), 63 S. E. 290; Western & Atlantic R. Co. v. Bradford, 113 Ga. 276, 38 S. E. 823; Short v. Cherokee Mfg. Co., 3 Ga. App. 377, 59 S. E. 1115; Jellico v. White, 11 Ga. App. 836, 76 S. E. 599; Walker v. Atlanta & West Point R. Co., 103 Ga. 820 (1), 30 S. E. 503; Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589, 116 S. E. 225; Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (4, 5), 86 S. E. 82.

Moreover, it appears without dispute that plaintiff...