Maddox, Bishop, Hayton Frame & Trim Contractors, Inc. v. Lambdin

• Decision Date: 12 November 1970
• Docket Number: No. 1,No. 45419,45419,1
• Court: Georgia Court of Appeals
• Parties: MADDOX, BISHOP, HAYTON FRAME & TRIM CONTRACTORS, INC. v. W. H. LAMBDIN

Page 310

179 S.E.2d 310

123 Ga.App. 61

MADDOX, BISHOP, HAYTON FRAME & TRIM CONTRACTORS, INC. v. W. H. LAMBDIN.

No. 45419.

Court of Appeals of Georgia, Division No. 1.

Nov. 12, 1970.

Rehearing Denied Dec. 3, 1970.

Syallabus by the Court

Issues of negligence, including the related issues of assumption of risk and lack of ordinary care for one's own safety, are peculiarly matters for resolution by a jury.

William H. Lambdin filed his complaint in DeKalb Superior Court. In substance, the plaintiff alleged that on August 7, 1968, he was employed on a construction job by one of the plumbing subcontractors and that the defendant was also on the job as a frame and trim subcontractor; that, while he was working on the job as a plumber, two of the defendant's employees negligently caused a stack of lumber to fall over on the plaintiff.

The defendant filed an answer and defenses denying its negligence and, among other affirmative allegations, raising the defenses of comparative and contributory negligence and assumption of the risk.

The case came on for trial and the plaintiff testified that: he was a plumber by trade and at the time of the injury which forms the basis of this action was employed by Miller-Wysong, a subcontractor on the job; on the day in question, the plaintiff arrived at the site at about 7:30 a.m.; he did not recal any lumber being stacked on the patio as shown in the photographs because most of his work was 'inside for a while,' nor did he know when the lumber was placed there; after working a while, the plaintiff took a break and then went back to the building where he had been working to sharpen a chain saw under, or on the side of, the patio on which the lumber was stacked, although he could have done this work anywhere else on the job; plaintiff was aware that the lumber was stacked immediately above him on the elevated patio because he had purchased a soft drink on his break and when he returned to his job put it up on the patio next to the stack of lumber; he had chosen to work in this area rather than one away from the stacked lumber because it was more convenient; suddenly he heard a 'popping sound,' and his companion, a fellow plumber, said 'the lumber's falling' and the lumber fell on him.

On cross examination about a previous statement against interest, the plaintiff testified he did not recall giving a statement to his workmen's compensation carrier that the lumber had been on the patio for several hours before the accident.

Defendant's president was called for cross examination and testified that: he estimated the lumber had been placed in the location in question between 8:30 and 9 a.m. on the morning in question and that defendant's employees could not have seen below the patio where plaintiff was working; he did not know what caused the lumber to fall; each piece of lumber weighed about fifty pounds, and about thirty to thirty-five pieces fell; a co-worker had taken a piece of lumber off the stack about ten to fifteen seconds before it fell, walked back to the saw bench and put it down when the lumber fell; he could not tell that the stack was about to fall nor did he know what caused it to fall. On cross-examination, he stated: that he had been on the plaintiff's side of the lumber before starting to remove pieces thereof and had seen no one; that his first knowledge of the plaintiff...