Culbreath v. M. Kutz Co, (No. 17979.)

• Decision Date: 21 November 1927
• Docket Number: (No. 17979.)
• Citation: 140 S.E. 419,37 Ga.App. 425
• Parties: CULBREATH. v. M. KUTZ CO. et al.
• Court: Georgia Court of Appeals

37 Ga.App. 425

140 S.E. 419

CULBREATH.

v.M. KUTZ CO. et al.

(No. 17979.)

Court of Appeals of Georgia, Division No. 2.

Nov. 21, 1927.

(Syllabus by the Court.)

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Action by Whit Culbreath, next friend, against the M. Kutz Company and others. Demurrers to petition were sustained, and plaintiff brings error. Affirmed.

Philip Culbreath, a window washer employed by the National Window Cleaning Company, while engaged in washing windows in the fourth story of a building in the city of Atlanta, fell to the street below and was injured. He thereafter brought suit against Citizens' & Southern Bank and M. L. Thrower, owners of the building, and against M. Kutz Company, the tenant in possession, to recover damages for his injuries. The court below sustained general demurrers and dismissed the petition, and the plaintiff excepted.

The only allegations which are material and pertinent to the questions raised by the demurrer were as follows:

"(6) That on or about April 16, 1926, Philip Culbreath was directed by his master for whom he was working, the National Window Cleaning Company, at the request of M. Kutz Company, to go to the place of said Kutz Company at Nos. 80 to 86 South Pryor street, Atlanta, for the purpose of washing the windows of the building occupied by Kutz.

"(7) That the plaintiff did as directed and went to said building, reporting upon his arrival to some agent of the defendant Kutz; that as per the instruction and contract of his master he immediately began, in the usual way, to wash the windows.

"(8) That he had worked for some time washing windows on the fourth floor. That he was working on the outside of a window, standing upon the edge of the window sill, as was usual and customary, at about the hour of 10 a. m. on said date, holding with one hand onto the window sash, when the whole sash, guides and all, without any warning of any kind, pulled out of its location, causing plaintiff to be precipitated to the sidewalk four stories below, where plaintiff was seriously and permanently injured as will be set out hereinafter."

"(11) It is alleged that plaintiff was washing windows on the fourth floor of a building located on the southeastern corner of Mitchell and Pryor streets; that to wash the outside of the lower sash it is necessary to put the lower sash up and the upper sash down and then when the lower sash is washed push the upper sash back to the top to wash the same, as the upper sash is on the outside; that the plaintiff alleges he had the upper sash down and the lower sash up, washing it, and was holding onto the window by holding onto the top of the upper sash or window frame as was necessary and usual: that after plaintiff had washed the lower sash, which was pushed up, plaintiff was in the act of pushing the upper sash back up into its place to wash it, holding onto the top of said sash, when the sash, without any warning of any kind pulled out of the window frame and guides and fell with plaintiff to the sidewalk below.

"(12) It is alleged that plaintiff was an experienced window washer; was in the exercise of ordinary care about his work at the time he was caused to fall and be injured.

"(13) It is averred that plaintiff was lawfully upon the premises occupied by the Kutz Company; that he had a right to be thereon, and was there at the invitation and request of said Kutz Company for the purpose of washing the windows on the fourth and other floors of said building.

"(14) As alleged, said premises were being rented by Kutz Company from either Thrower or Citizens' & Southern Bank, or both.

"(15) It is averred that it was the duty of said occupier, Kutz Company, prior to and at the time of causing the plaintiff to be put to work washing windows, to notify him and warn him of the defective condition of the guides, sashes, and window frames; that this defendant knew that the guides, sashes, and window frames were old and rotten and decayed, having been in place 12 or 15 years, long enough for the nails holding them in place to become old, rusty, and thjn, and of no account in holding said guides and frames in place; as alleged this defendant knew or ought to have known, had it been in the exercise of ordinary care, that when the plaintiff went to wash said windows the same would fall out and cause him to fall to his hurt and damage; that it was this defendant's duty to have inspected said windows, which it failed to do, in order that plaintiff could have been warned of the defective condition; that a reasonable inspection by a carpenter or mechanic would have revealed such defective condition; that the defendant knew plaintiff could not tell said window guides or frames were old, rotten, and decayed by looking at them, and the dereliction of these stated duties on the part of Kutz Company is alleged as negligence against it.

"(16) It is alleged that the owners of said building Thrower and Citizens' & Southern Bank were negligent in causing said building to be erected out of material too light for the purpose intended, that is, the guides, sashes, and frames in the windows were made up of material unsuited for windows that had to be washed in the usual way by a cleaner from the outside; that these defendants at the time of erecting said building knew that the window washers would of necessity have to stand on the outside of the window and hold onto the frame; that the frame was held in place by guides and that the guides would have to withstand the natural strain thus caused; that said owners knew that said buildings had been in place for 12 to 15 years and that the window guides, sashes, and frames were old and decayed, that the nails were and had been in place a sufficient length of time to have become rusty and defective and ought to be replaced; that same was dangerous to window cleaners washing windows in the usual manner; that, notwithstanding this knowledge on the part of the owners, they failed and refused to inspect said building and allowed the window guides, frames, and sashes to get in such fix as the same fell out while being washed in the usual way, precipitating plaintiff to the sidewalk and thus causing his injury; that, if the guides to said window had been nailed to the framing with good tenpenny nails when the building was put up, the same would have held and not fallen, as alleged.

"(17) That the acts of negligence of all the defendants were concurrent acts causing or contributing to plaintiff's injury."

Colquitt & Conyers and Sidney Smith, all of Atlanta, for plaintiff in error.

Slaton & Hopkins, McDaniel & Neely, Rembert Marshall, and Alston, Alston, Foster & Moise, all of Atlanta, for defendants in error.

BELL, J. (after stating the facts as above). [1] Courts take judicial cognizance of matters of common knowledge and of common experience among men. So. Ry. Co. v. Covenia, 100 Ga. 46(1), 20 S. E. 219, 40 L. R. A. 253, 62 Am. St. Rep, 312; Snider v. State, 81 Ga. 753(la), 7 S. E. 631, 12 Am. St. Rep. 350. Certainly, in the absence of positive and direct averments to the contrary, this court should know that the windows of a building are designed for the purpose of affording light and air and in some cases perhaps for ornament or symmetry, and are not intended to support the weight of a man, however great or small, while he is engaged in cleaning them from the outside. It has been held that even an uncontroverted allegation in a pleading does not prevent the court from concluding otherwise by resorting to its ownjudicial knowledge....