Fulton Ice & Coal Co. v. Pece
| Decision Date | 10 February 1923 |
| Docket Number | 13298,13405. |
| Citation | 116 S.E. 57,29 Ga.App. 507 |
| Parties | FULTON ICE & COAL CO. ET AL. v. PECE. PECE v. FULTON ICE & COAL CO. ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
"Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Civ. Code 1910, § 4420.
(a) This section places upon such owner or occupier of land the duty to exercise ordinary care, for the safety of his invitees, in discovering defects or dangers in the premises or instrumentalities thereon, and imposes a liability for injuries resulting from such defects as a reasonable inspection would disclose.
(b) Such owner or occupier of land is liable for a failure to warn his invitees of dangers or defects in such premises or instrumentalities, of which he knew or of which it was his duty to know in the exercise of ordinary care.
(c) Upon this principle is founded the duty which the proprietor of premises owes to a contractor's servant who comes lawfully upon the premises to repair machinery or instrumentalities thereon for the proprietor in the performance of a contract for such repairs between the proprietor and the contractor.
Where the servant of a contractor is lawfully upon the premises of another for the purpose of making repairs upon some instrumentality of the proprietor thereon, by virtue of a contract between his master and the proprietor, and is injured by reason of some defect of the premises or of the instrumentality thereon, an allegation in an action by the servant against the proprietor for such injuries that the proprietor knew of such defect, or ought to have known thereof in the exercise of ordinary care, is a sufficient allegation of knowledge to place the responsibility upon the proprietor therefor.
(a) Where, in such a case, the preliminary facts necessary to raise the duty of knowledge by the proprietor have been set forth, the statement of the legal conclusion that he knew or in the exercise of ordinary care ought to have known is not objectionable; otherwise where the facts alleged as to the relation do not in themselves raise such duty.
A servant lawfully upon the premises of another, for the purpose of making repairs upon appliances thereon for the proprietor under a contract between his master and the proprietor, does not assume the risk of defects in the appliances which are independent of those which he is called upon to repair, and of which he could not have known in the exercise of ordinary care.
"Where a servant, in the regular course of his employment, is sent by the master to perform work for the latter on the premises of a third person, the obligation of the master to inspect the premises and warn the servant of dangers therein is the same as if the master was himself the owner of the premises." Georgia Railroad v. Hunter, 12 Ga.App. 295 (5), 77 S.E. 177.
"Where one suffers an injury as the result of the concurring negligence of two tort-feasors, the injured party may maintain a joint or several suit against the tort-feasors and it will be sufficient to support a recovery in a joint suit if the negligence of both be a contributing cause although the degree of care owed to the complainant by both parties defendant be not the same." Gooch v. Georgia Marble Co., 151 Ga. 462, 107 S.E. 47; Kelly v Georgia Railway & Power Co., 24 Ga.App. 439(4), 101 S.E 401.
Whatever may be the rule in other jurisdictions, it is the law of this state that the maxim res ipsa loquitur has no application to pleadings, and general averments of negligence cannot be aided thereby; it is only a rule of evidence. Hudgins v. Coca Cola Bottling Co., 122 Ga. 695(4), 50 S.E. 974, and cases there cited; Cochrell v. Langley Mfg. Co., 5 Ga.App. 317(1), 63 S.E. 244; Sinkovitz v. Peters Land Co., 5 Ga.App. 788(2), 794, 64 S.E. 93.
Applying the foregoing principles to this case, there was no error in overruling any of the demurrers, general or special, except the special demurrer to the second count, on the ground that no specific allegations of negligence were set forth, which should have been sustained; but the court erred in sustaining any of the other special demurrers.
Additional Syllabus by Editorial Staff.
Where employee of contractor, sent to repair tank on defendant's premises, was injured by explosion while the tank was being tested by defendant after the repairs were made, by subjecting it to pressure, it could not be said as matter of law that defendant owed no duty to inspect and give the employee warning, though the tank was a closed vessel, the inspection of which was claimed to be impracticable.
If ordinary care requires an inspection, it requires such inspection even though difficult.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Gordon Pece against the Fulton Ice & Coal Company and another. Judgment overruling demurrers in part, and the defendant named brings error, and plaintiff brings a cross-bill of exceptions. Reversed on both bills of exceptions.
An action for damages was brought by Gordon Pece against the Fulton Ice & Coal Company and the Standard Gas Products Company, in four counts. The first named company will hereinafter be referred to as the Fulton Company, and the other as the Standard Company.
In the first count the plaintiff alleges that on December 29, 1919, he was an employee and servant of the Standard Company as an expert welder; that the Fulton Company employed the Standard Company to weld and repair for it and upon its premises "a steel drum that had ripped open and was leaking;" that plaintiff was directed by the superintendent and vice principal of the Standard Company, one H. A. Alber, to go to the plant of the Fulton Company and make these repairs, and to get his instructions from the Fulton Company "as to the location of the drum, and as to how and in what particulars the same was to be welded; said Alber further stating that he would test the tank in conjunction with" one Barksdale, the vice principal of the Fulton Company, as to the particular matter in hand, "after the work was done"; that when plaintiff reached the plant of the Fulton Company said Barksdale pointed out to plaintiff "the particular drum, stating at said time that it was in good condition except as to the ripped place," at which Barksdale instructed the plaintiff to weld the same; that he stated to plaintiff "that he (Barksdale) would in conjunction with the said Alber inspect and test said drum after the same was welded"; that the plaintiff completed the work on December 30, 1919, and so notified Barksdale and Alber, and stated that he was ready for them to inspect the drum and test the work; that the drum was a cylindrical vessel about 8 feet long and 4 feet in circumference, made of a steel shell through which pipes ran lengthwise for the circulation of water when the drum was in use; that Barksdale and Alber, acting within the scope of their duties respectively for the companies which they represented, proceeded to test the drum by the use of air pressure therein; that the Fulton Company "rigged up a pipe and connected the said drum to its engine, through a steam gauge, obtained by it from an old steam engine, after which the said Barksdale then and there asked the said Alber if said drum would hold a heavy pressure of approximately 200 pounds," and that, Alber replying in the affirmative, "Barksdale instructed a colored man to start the said engine"; that the drum was located in a wooden box or basin, upon the edge of which plaintiff was sitting in the view of both Barksdale and Alber at the time the test began, not having been warned by either of them of any probable danger; and that, when the gauge registered approximately 160 pounds, the drum suddenly exploded and seriously injured the plaintiff in described particulars.
It is alleged that the gauge was defective in that it would not register the pressure which was placed within the drum, and that this fact was well known to the defendants, or should have been known to them in the exercise of ordinary care that the same could have been easily ascertained by an inspection, and that it was the duty of the defendants, in the exercise of ordinary care, to have ascertained its condition by inspection before attempting to use it; that the drum was defective in that the metal on the inside had worn, rusted, and corroded from exposure to water, air, and ammonia; and "that the same had left a seam within and along the inner side of said drum, which caused a thinness of the metal or steel at said point, and which condition was known to defendants, or should have been known to them in the exercise of ordinary care"; that "it was the duty of said defendants to have inspected said drum and ascertained its condition before attempting to use or test it"; that it was not safe to place a pressure of more than 75 or 80 pounds on the drum in this condition, and that the defendants should, in the exercise of ordinary care, have known this fact; that the plaintiff, under his employment had no duty to inspect the machinery or test the work done by him, and that he did not know the defective condition of the gauge or of the drum, and was not warned of the same by any person; that he did not know what pressure a drum of this character would stand under any conditions, and did not know anything as to the manner of using a steam gauge in such a matter; that Barksdale and Alber were expert engineers and mechanics, and both did know, or in the exercise of ordinary care should have known, of the danger of...
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