Hopkins v. Barron

• Decision Date: 30 November 1939
• Docket Number: No. 27640.,27640.
• Parties: HOPKINS. v. BARRON.
• Court: Georgia Court of Appeals

6 S.E.2d 96

HOPKINS.

v.BARRON.

No. 27640.

Court of Appeals of Georgia,

Division No. 1.

Nov. 30, 1939.

Syllabus by the Court.

Where a night watchman alleged in his petition that he was injured as a result of his "running" in the dark and stumbling over certain materials which had been cut from the body of a truck in repairing it and scattered about and near said truck in and along a pathway of petitioner, and defendant was negligent in failing and refusing to provide a proper lighting in and along said pathway, and was further negligent in placing or allowing certain of his employees to place said materials in said pathway, the petition was properly dismissed on demurrer, it appearing from the allegations of the petition that the plaintiff had failed to exercise ordinary care with respect to one of the alleged acts of the defendant's negligence (failing to have lighting), and, with respect to certain other alleged acts of negligence complained of (scattering materials taken from a truck, which had been repaired, in petitioner's pathway), it might also be noted that it appeared that they were the acts of fellow-servants, which acts resulted from the performance of a duty which obviously could be, by the master, safely intrusted to the discretion of the fellow-servant, and the negligence, if any, of the fellow-servants was not imputable to the master.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Personal injury action by W. R. Hopkins against H. H. Barron. To review an adverse judgment, plaintiff brings error.

Affirmed.

A. L. Henson, of Atlanta, for plaintiff in error.

McElreath, Scott, Duckworth & DuVall and J. L. Riley, all of Atlanta, for defendant in error.

MacINTYRE, Judge.

W. R. Hopkins brought this suit for alleged personal injuries against H. H. Barron, who dealt in new and used cars and had a staff of mechanics and salesmen for the purpose of carrying on the business. The petition as amended alleged that the petitioner was employed as night watchman to guard and supervise the place during the night hours and on October 29, 1937, at about eleven o'clock P. M., was engaged as night watchman on defendant's premises; that while making his rounds five automobiles drove up on Fair Street immediately in front of the defendant's premises; that certain negroes were boisterous and made sufficient noise and disturbance to attract petitioner's attention; that he thereupon started running in the direction of the noise in an effort to protect defendant's property and to ascertain the cause of the disturbance; that the premises or lot was used to park cars which defendant kept in stock for sale and exchange; that "on the night of the injury the defendant and his employees left a truck parked on said lot. * * * During the day previous the employees of the defendant had" done certain described repair work on the truck and "all of the timbers, hardware, irons, and materials which had been cut from the body of the truck were scattered about and near said truck; * * * the ground was littered by said parts providing obstruction and entanglements and solid obstructions on the surface of the ground over which any person coming from the watchman's house to Fair Street would have to pass." That defendant failed and refused to erect on ornear the lot any light or lights which would illuminate the ground and disclose to any person walking thereon the dangerous character of the ground as above described; that the lights on Fair, Forsyth, and Whitehall Streets (which bounded the lot) were insufficient to illuminate the premises; that petitioner admonished defendant to provide sufficient lights, there being no lights except the 30-watt light in the watchman's house which was wholly insufficient to disclose any obstructions that might be on the surface of the lot; that buildings obstructed the lights from the streets and prevented them from illuminating the ground, nor was there any other light to illuminate the ground around said truck over which the petitioner "ran" to the point where he thought there was trouble, "and that upon running onto and across said debris he tripped and fell, throwing his entire weight upon his left leg and in such a manner that the left bone of his leg was broken just above the ankle;" that petitioner contributed in no manner any negligence and was entirely free from negligence or fault. That the negligence of the defendant was as follows: "(a) In the placing of said debris in the path over which it was necessary for plaintiff to travel in pursuing his duties as night watchman. (b) In failing and refusing to provide proper lighting in and along the path over which your petitioner must travel in carrying out his duties. (c) In allowing mechanics and salesmen in his employ to place said debris and obstruction in and along the pathway of your petitioner." That the defendant was guilty of gross negligence in failing to put lights on the premises after being requested so to do, and this negligence was the direct proximate cause of the injury. The defendant's demurrer to the petition was sustained and the plaintiff excepted.

"Under the law the servant or employee is not required to make any special inspection to see the condition of the place furnished to him, but if, by exercising ordinary care, (he) can discover the condition of it, it is his duty to do so." Payne v. Rivers, 28 Ga.App. 28 (4), 110 S.E. 45, 46. "A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself." Code, § 66-303. Under the allegations in the petition, construed most strongly against the plaintiff, he was not exercising ordinary care when he was "running"...