Daniel v. Forsyth

• Decision Date: 04 March 1899
• Citation: 32 S.E. 621,106 Ga. 568
• Parties: DANIEL v. FORSYTH.
• Court: Georgia Supreme Court

32 S.E. 621

106 Ga. 568

DANIEL v. FORSYTH.

Supreme Court of Georgia

March 4, 1899

Syllabus by the Court.

The evidence offered by the plaintiff in the present case not being sufficient to authorize a recovery in his behalf, the granting of a nonsuit was proper.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by J. T. Daniel against J. J. Forsyth. From a judgment of nonsuit, plaintiff brings error. Affirmed.

Reed & Hartsfield and L. R. Ray, for plaintiff in error.

Mayson & Hill, for defendant in error.

COBB J.

Daniel brought suit against Forsyth, alleging in his petition that on April 16, 1896, he was in the employment of the defendant engaged in shingling the roof of a house; that the defendant ordered plaintiff to go upon a certain scaffold, and nail shingles to the roof of the house; that plaintiff complied with this command, and had nailed but a few shingles, when the scaffold gave way, and plaintiff fell to the ground sustaining severe injuries. It is alleged that the scaffold was built by the superintendent of the defendant in a careless and negligent manner, for the reason that the footboard was a 1X10 or 1X12 inch board, about 12 or 16 feet in length, and the braces were three or four shingles, in an almost upright position against the board, whereas 1X3 strips or weatherboarding of sufficient length and strength should have been used for braces. The petition further alleges that plaintiff was an inexperienced man in working on scaffolds and on roofs, and that he did not know at the time that said scaffold was built in an unsafe and negligent manner, nor was he warned by the defendant of the danger. Defendant well knew that his superintendent was a careless and incompetent man and retained him in his employment after he had notice of the fact, and, if defendant did not know this fact, he should have known it. Plaintiff did not, at the time of receiving the injuries, know that the superintendent was a careless and incompetent man. Plaintiff is 53 years old, and his earning capacity has been reduced one-half. The petition charges that it was gross negligence on the part of the defendant to order him to work upon a scaffold that was unsafe and dangerous; that it was gross negligence not to warn plaintiff, who was inexperienced, of the danger in going upon the scaffold; and that defendant was gross negligence in retaining in his employment a negligent and incompetent superintendent. By amendment, it is alleged that it was the duty of defendant to have made the scaffolding so strong, and to fasten it so securely, that it would safely support the weight of all persons put to work thereon, together with the supply of shingles necessary to keep the force then engaged in covering the roof; but that defendant neglected his duty in this respect, and permitted the scaffolding to be so weak and insecurely fastened that it was unsafe and dangerous, and while plaintiff was upon it, engaged in the performance of his duty, the scaffolding gave way, and caused the fall and injuries alleged. By another amendment, the plaintiff alleged that, before receiving the injuries, he earned by his labor two dollars per day; and also alleged that he had received certain other injuries, not enumerated in his original declaration, and which he alleged were permanent. The defendant answered, admitting the employment of plaintiff as alleged, but denied all of the allegations as to injuries and negligence.

At the trial the evidence for the plaintiff was, in substance, as follows: He was employed by defendant to nail on shingles as alleged. Defendant was present where the plaintiff was at work, and ordered plaintiff to begin work at a certain place on the roof. There were two other men at work on the staging on which plaintiff was ordered to work. They moved out of the way to make room for plaintiff, and went to the other end. Plaintiff got upon the staging, between the two men, and began nailing on shingles. He had not nailed on more than 8 or 10 shingles when the scaffold broke. The staging was made of one plank about 1X12, 16 feet long,...