Kidd v. Williamson
| Decision Date | 15 March 1940 |
| Docket Number | No. 28027.,28027. |
| Citation | 61 Ga.App. 890,8 S.E.2d 590 |
| Parties | KIDD et al. v. WILLIAMSON. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 30, 1940.
Syllabus by the Court.
1. Under the circumstances of this case, the repairing of the tiling in question, the back door steps, was of such normal character upon a thing whose natural constituents and general characteristics were so simple and ordinary that any normal person (the servant) would not only have comprehended what accident, if any, would likely occur as well as any other normal person (the master), but also as well as any skilled carpenter.
2. The servant, taking active part with the master in repairing the steps, assumed the risk, if any, arising from the failure of the master to do his duty on the day of and at the time of the repairing of the steps, because an ordinary person would necessarily have known of the failure. 4 Labatt Master & Servant, 3080. The risk which the servant assumed at the time of the repairing was within the comprehension of any adult of ordinary intelligence, irrespective of the question of whether she had or had not any special experience in the work in which they were engaged at the time of the repairing.
3. If the servant herself produced or assisted in producing the conditions by something she herself had done in connection with the performance of her duties or incidental thereto, if she did not specifically know how far the defect (of which she was already aware) had developed on the day of the accident, it was within her general knowledge as something likely to occur.
4. The preliminary facts pleaded do not warrant the conclusion of the pleader that they established the ultimate fact that the knowledge of the skilled and experienced carpenter (the master) would have been superior to the knowledge of the normal person of average intelligence (the servant) as to what might likely occur as a result of the repairs of the character made. See Lewis v. Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Suit by F. M. Williamson against W. T. Kidd and another, executors, for personal injuries alleged to have been sustained by plaintiff while descending back steps of home of defendants' decedent, and while plaintiff was employed by decedent as his housekeeper. To review a judgment overruling defendants' demurrer to the petition, the defendants bring error.
Judgment reversed.
This case involved the correctness of the judge's order overruling the demurrer to the plaintiff's (servant's) petition in an action by her to recover damages against the defendant (master) for personal injuries alleged to have been sustained while descending the back steps of the defendant's home and while the plaintiff was employed by the defendant as his housekeeper. The petition in effect alleged that the plaintiff was employed as housekeeper for the defendant, and, having no knowledge of carpentry or of repairing steps, assisted the defendant in repairing the same. However, thereafter, she alleged that she assisted the defendant in repairing in that "she immediately proceeded with the repairing of said steps [approximately 12 months prior to the injury], in the manner and under the express direction of the defendant who supervised the repairing, and with the tools and materials furnished her by the defendant, and petitioner shows that the defendant marked off the wood used in repairing the steps, showing petitioner where to saw it and that defendant placed and held the nails so that petitioner could hammer them in place. * * * that the tread and stringer of said steps were in a rotted condition 'around the area where the nails used to secure the tread to the stringer were fastened, causing the nail holes to soften and enlarge and allowing the nails to become loosened." That some 12 months thereafter, she was descending said back steps (which she alleges was the "only means of exit and entrance from the rear of said dwelling house of defendant") and while so doing, one of the treads thereof slipped loose from the stringer causing her to fall and receive certain alleged injuries in the amount of $10,000. The plaintiff alleged that the defendant was negligent "in allowing said tread to remain on the stringer of the steps in its rotten condition when the defendant knew or should have known that the wood being rotten, the nails would not hold." The defendant died March 18, 1939, pending the suit, his executors were made parties, and the defendant's death was suggested of record. The plaintiff then amended her petition on April 19, 1939, by striking $10,000 and inserting in lieu thereof $25,-000 as the amount of damages received.
Claud F. Brackett, Roy S. Drennan, and A. J. Hall, all of Atlanta, for plaintiffs in error.
Harold Karp, of Atlanta, for defendant in error.
It seems to us, construing the petition most...
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