Gunn v. Willingham
| Decision Date | 14 July 1900 |
| Citation | 36 S.E. 804,111 Ga. 427 |
| Parties | GUNN v. WILLINGHAM. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. One who is engaged with others in raising, by means of a derrick timbers which are being used in the construction of a house and whose particular duties are to stand on a scaffold and receive and detach such timbers from the derrick when they are sufficiently elevated for the use intended, is a fellow servant of one who stands on the ground and operates the machinery which elevates such timbers, when the persons so engaged are under one common employment, receiving orders from another as superintendent of the entire construction and this is so even if the person operating the derrick is invested with authority to direct how and when the elevation of the timbers shall be made.
2. Even if, in a given case, it be shown that the machinery and appliances furnished by the master for the prosecution of the work in hand were defective, he is not liable to a servant for an injury occasioned by defects of which the latter had knowledge before he was injured, if, with such knowledge, and without calling attention to the defects, he continued in the work carried on by the use of such machinery. Nor is he entitled to recover on the ground that the master negligently employed an incompetent fellow servant, unless it be made to appear not only that such fellow servant was in fact incompetent, but that this was known, or ought, in the exercise of due diligence, to have been known, to the master at the time of the employment, or else that the master negligently retained such fellow servant in his service under circumstances warranting a finding that he knew, or was fairly chargeable with knowledge, of such incompetency.
Error from city court of Atlanta; H. M. Reid, Judge.
Action by J. H. Gunn against E. G. Willingham. Judgment for defendant, and plaintiff brings error. Affirmed.
Hoke Smith and H. C. Peeples, for plaintiff in error.
Westmoreland Bros. and Culberson & Willingham, for defendant in error.
Gunn instituted an action against Willingham by which he sought to recover damages which it is alleged he sustained by reason of the negligence of the defendant while the relation of master and servant existed between them. The petition and answer raised the issue whether the master had provided reasonably safe appliances in the work being performed by the plaintiff and those engaged with him in a common business, and also whether the master was negligent in the employment of an incompetent servant, who was handling the machinery at the time the plaintiff was injured. It is alleged that the master was negligent in each of these particulars, and that the plaintiff was free from negligence, and was engaged in separate work from that connected with the handling of the machinery, which was the proximate cause of his injury. It appears from the evidence of the plaintiff, who was a witness in his own behalf: That he was an experienced carpenter in the employ of the defendant in July, 1897, when he was injured. That the defendant was a contractor engaged in the construction of a large building to be used for manufacturing purposes. In the construction of the building a derrick something near 75 feet in length was being used. It was constructed by lapping pieces of timber together, and having them heavily spiked and bolted. It also appears that the plaintiff and one other employé of the defendant constructed the derrick, which was used for hoisting heavy timbers to the top of the work as it progressed. Originally this derrick was operated by one Carey, who, the plaintiff testified, had experience in that business; and the witness, who had knowledge of such matters, was satisfied with the manner of the construction of the derrick, and the way in which Carey handled it. The base of the derrick was originally placed on the ground floor of an old building which stood on the same site, and which had been previously used for the manufacture of commercial fertilizers. On the day previous to the time when plaintiff was injured, the derrick was put in charge of one Brantley, and Carey had charge of the landing of the timbers. The plaintiff, Brantley, Carey, and others were building the house together. When Brantley took charge of the derrick, he cut off a part of it, and took it out of the cellar or pit and placed it on a bank, supporting it as it was supported before,--by three guy ropes which were attached to stakes driven in the ground 15 or 20 feet from the mast of the derrick. At the time he was injured the derrick was being used to carry heavy timbers to the top of the building. Plaintiff was on a scaffold, helping to receive the timbers brought up by the derrick, and was 50 feet above the ground. While the heavy timbers were being brought up, one of the ropes broke, and the derrick was overthrown, striking the scaffold and precipitating plaintiff to the ground. The guy ropes were being used in the same way that they had been theretofore used, and were fastened in the form of a triangle, with the mast of the derrick as the apex. The guy ropes were new at the beginning of the work, but they were small,--about an inch or three-quarters of an inch in diameter. Witness had seen larger guy ropes used to elevate timbers of that character, but these had sustained similar loads up to that time without being broken. Plaintiff knew that these ropes were being used, and that the ropes were too small, but did not consider it his business to suggest that fact. He thought the ropes were liable to break, using them so long, and he considered it dangerous work, anyway. At the time the ropes gave way and caused the derrick to fall Brantley himself was managing the derrick. There was acid in the cellar, and before the derrick was removed the guy ropes often got in the acid, because it was banked up in the cellar. At the time plaintiff was hurt the building was almost completed, and the derrick was taken out of the cellar in order to carry the timbers which were necessary to complete it to the top of the building. Plaintiff had known Brantley ever since he was a boy. They had worked together before the superintendent hired the plaintiff and Brantley to engage in this work. Brantley's business was that of a carpenter and wood workman. Plaintiff did not know of any experience he had in the management of derricks. Previous to the time when Brantley took charge of the derrick, he was engaged at work on another building, and when that was finished he came to this one. There was testimony, also, tending to show that the derrick was not properly managed by Brantley; and one witness testified that, while he had known Brantley to handle smaller derricks, he had never before known him to handle a derrick of that size, and that a failure by Brantley to follow the instructions of Carey caused the derrick to fall. Evidence was also introduced tending to show that one of the guy ropes of the derrick was fastened to a tree, another under the railroad iron, and the other to a stake driven in the ground; that the derrick was in a leaning position, against the line which was fastened to the stake, which caused the stake to be pulled out of the ground. When the stake was pulled out of the ground the weight was thrown on the rope, which broke. The stake was driven in the ground two feet,--sufficiently, in the opinion of the witness, to have held the rope. At the time of the fall, Brantley was directing the operations. Another witness, who stated that he had experience in such matters, testified, among other things: That he saw the derrick after it was fixed. That there was nothing about it sufficient to call attention that anything was wrong. Jim Brantley was doing the work with a squad of men. Jim Brantley was under William Brantley, and William was under Padgett, and Padgett worked for the defendant. Padgett, the superintendent, was there frequently, as was also the defendant. On the conclusion of the evidence for the plaintiff, the defendant moved for a nonsuit, which was granted, and the...
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