Mathis-Akins Concrete Block Co., Inc. v. Tucker

• Decision Date: 14 November 1972
• Docket Number: Nos. 1,2,3,No. 47233,MATHIS-AKINS,47233,s. 1
• Parties: CONCRETE BLOCK COMPANY, INC. v. William W. TUCKER
• Court: Georgia Court of Appeals

Page 604

194 S.E.2d 604

127 Ga.App. 699

MATHIS-AKINS CONCRETE BLOCK COMPANY, INC. v. William W. TUCKER.

No. 47233.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 14, 1972.

Rehearing Denied Dec. 5, 1972.

Anderson, Walker & Reichert, Mallory C. Atkinson, Jr., Albert P. Reichert, Macon, for appellant.

Neal D. McKenney, Richard B. Thornton, Tilman E. Self, Macon, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

William W. Tucker was employed by a detective agency as night watchman of the premises of Mathis-Akins Concrete Block Co., Inc. He filed suit against the owner of the premises, and alleged that he had suffered personal injuries when he fell into a pit on defendant's premises, which pit was maintained by defendant between two railroad tracks on said premises; that defendant never warned or told plaintiff of the pit; that plaintiff never saw it prior to his injury; that his work on the premises was as night watchman during the hours of darkness; that each time he had ever had occasion to look in that direction prior to his injury, said pit had been covered by a hopper-car standing over the pit between the tracks; that there were no lights or warning signs giving notice of the dangerous condition; that on the night of his injury he was requested by members of a train crew to render assistance as to an obstruction on the railroad tracks in this vicinity. The time was about 3:00 a.m., during 24 degree weather; he approached the obstruction with his light shining upon the obstruction, and fell into the pit, which had been left on this night without a hopper-car over it. That he had no previous knowledge of the existence of the pit, and all of this caused him to fall into it.

The defendant answered, denying the material portions of the complaint and contended generally that plaintiff's alleged injury resulted from his own negligence; that he assumed the usual and ordinary risks of employment about the premises; that he failed to exercise ordinary care, skill, and diligence to protect himself from a risk which should have been known to him.

The case proceeded to trial; verdict and judgment were rendered for the plaintiff, and defendant filed its motion for judgment notwithstanding the verdict, predicated on its prior motion for directed verdict made at the close of the evidence, and, in the alternative, moved for a new trial. The motion was amended, heard and overruled. The defendant appeals. Held:

1. After verdict the evidence is construed in its light most favorable to the prevailing party, and every presumption and inference is in favor of the verdict. Boatright v. Rich's, 121 Ga.App. 121, 173 S.E.2d 232. Questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for a jury, and a court should not attempt to take the place of the jury in solving them except in plain and indisputable cases. Peck v. Baker, 76 Ga.App. 588(1a), 46 S.E.2d 751; Brown v. Iocovozzi, 117 Ga.App. 693, 694, 161 S.E.2d 385; Hanchey v. Hart, 120 Ga.App. 677, 679, 171 S.E.2d 918.

2. It was for jury determination as to whether the defendant had equal knowledge with the plaintiff, and as to whether or not plaintiff's own negligence contributed in any way to the mishap. The evidence did not demand a finding for the defendant.

The plaintiff was not the servant of the defendant. Code § 66-303 and such cases as Ludd v. Wilkins, 118 Ga. 525, 45 S.E. 429; Holman v. American Auto Ins. Co., 201 Ga. 454, 460, 39 S.E.2d 850; McDonnell v. Central of Ga. R. Co., 118 Ga. 86, 89, 44 S.E. 840; Crown Cotton Mills v. McNally, 123 Ga. 35(3), 51 S.E. 13; Taff v. Harris, 118 Ga.App. 611(2), 164 S.E.2d 881 do not apply. We cannot state, as a matter of law, that the evidence here shows the hazard was so obvious that plaintiff could not recover.

3. The contention of the defendant that the court erred in charging 'mantrap' or 'pitfall' is not meritorious. Although the evidence was conflicting, it was ample on plaintiff's part to show a pitfall. See Harvill v. Swift & Co., 102 Ga.App. 543, 546, 117 S.E.2d 202; Rogers v. Bragg, 117 Ga.App. 295, 160 S.E.2d 217.

4. There is no merit in the contention that the trial judge charged incorrectly as to assumption of risk. The language charged is authorized by Roberts v. King, 102 Ga.App. 518, 521, 116 S.E.2d 885. Further, the objections made at the trial were quite vague, and contended the judge had improperly charged plaintiff's request, while the enumeration of errors proceeds on another theory, to wit, that the trial judge erred in omitting to charge certain legal principles.

5. During the examination of the witness Dougherty, defendant's office manager, counsel for defendant attempted to show by his testimony, from examination of the invoices, that there were no cars over the hopper on certain dates. On objection, the court refused to allow the witness to answer whether or not, from his examination of the business records, same showed a loaded car not to be present on certain dates. The witness had no knowledge as to whether a car, loaded or unloaded, was over the hopper on these occasions. The invoices could not enable the witness to provide the answer, as said records simply showed date of delivery of the cars onto the yard, date of unloading and release, but did not show the date or dates when said cars were placed over or removed from over the hopper. The court did, however, allow the introduction into evidence of said invoices, for such light as they might shed on the question at issue. The court did not err in sustaining the objection to the testimony of the witness on this point.

6. Defendant complains because the court would not allow, over timely objection, the testimony of its agent, Dougherty, as to the relationship between the defendant and the detective agency which employed plaintiff. Objection was made upon the ground that the contract was in writing, and that it was the highest and best evidence on the question. Counsel for defendant said he anticipated that plaintiff's counsel would object to the contract, but was immediately, by said counsel, informed that they would not object to it. There was no error in sustaining the objection to the testimony.

7. We have considered each alleged error enumerated, and find no error; the judgment must be affirmed.

Judgment affirmed.

QUILLIAN and CLARK, JJ., concur.

PANNELL and DEEN, JJ., concur specially.

BELL, C.J., HALL and EBERHARDT, P. JJ., and STOLZ, J., dissent.

DEEN, Judge (concurring specially).

The plaintiff here is a night watchman employed by Burns Detective Agency under contract with the defendant. In the course of his duties the plaintiff was walking over the defendant's premises when he fell into a hole, the existence of which was unknown to him but had been placed there by the defendant. It was nighttime and there was no light or warning of the existence of the hole.

I agree with what is held in the majority opinion. Additionally, insofar as the duty of care owing to the plaintiff, and the issue of contributory negligence, are concerned, a jury question on simple negligence should have been submitted to the jury under the decision in Wakefield v. A. R. Winter Co., Inc., 121 Ga.App. 259, 174 S.E.2d 178 where the plaintiff was an employee of a subcontractor and the circumstances of his fall through an open stair-well in daylight were held insufficient to support a summary judgment in favor of the defendant builder. If this is true, the jury instruction on mantraps and pitfalls discussed in the third division of the opinion actually puts a greater burden on the plaintiff to show wilful misconduct than the law requires, and if error would be harmless to the defendant. A dangerous hole on premises where there is no warning of any kind may, under the decision in MacKenna v. Jordan, 123 Ga.App. 801, 182 S.E.2d 550, constitute 'a hidden peril, mantrap or pitfall.' Also see Burton v. Western & A.R. Co., 98 Ga. 783, 25 S.E. 736 and Central of Ga. R. Co. v. Ledbetter, 46 Ga.App. 500, 168 S.E. 81. If the plaintiff was not, as a night watchman on the premises, an invitee, he was at the very least a licensee whose presence would be anticipated, and 'it is usually wilful or wanton not to exercise ordinary care to prevent injuring a licensee who is reasonably expected to be within the range' of a dangerous instrumentality. Murray Biscuit Co. v. Hutto, 119 Ga.App. 377, 386, 167 S.E.2d 182, 188, and see Patterson v. Thomas, 118 Ga.App. 326, 163 S.E.2d 331.

As to Division 4, I agree that the charge on assumption of risk was correct as given. To assume a risk of danger involves volition-the decision to take the risk after it is known, not simply negligence in failing to take precautions by means of which it could have been discovered. Negligence in failing to discover a danger is one thing; negligence in failing to avoid it after it is discovered is another, and assumption of risk generally refers only to the latter. 'One who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages from injuries thus occasioned.' Smith v. American Oil Co., 77 Ga.App. 463(1), 49 S.E.2d 90; and see S. C. Jones Co. v. Yawn, 54 Ga.App. 826(1), 188 S.E. 603. This is not contrary to what is held in Gray v....