McClurd v. Reddick
| Decision Date | 23 May 1975 |
| Docket Number | No. 50280,No. 1,50280,1 |
| Citation | 217 S.E.2d 163,135 Ga.App. 136 |
| Parties | J. M. McCLURD et al. v. T. L. REDDICK et al |
| Court | Georgia Court of Appeals |
Hutto & Palmatary, J. S. Hutto, Fendig, Dickey, Fendig & Whelchel, Albert Fendig, Jr., Lissner & Killian, Jack J. Lissner, Jr., Nightingale, Liles & Dennard, B. N. Nightingale, Edward E. Boshears, Brunswick, Bouhan, Williams & Levy, Walter C. Hartridge, Savannah, E. Kontz Bennett, Sr., Waycross, for appellants.
Taylor, Bishop & Lee, James A. Bishop, Terry L. Readdick, Brunswick, for appellees.
Reddick was injured while standing near a log shaving machine, being operated by some of the defendants. He brought suit against five defendants, McClurd Enterprises, Inc.; J. M. McClurd; Amxco, Inc.; Leon Young; and Emory Young, all of whom were engaged in various stages of installation of the log shaving machine in a sawmill plant of McClurd Enterprises. Later, two other defendants, Soderhamn Machine Manufacturing Co. and Fulghum Industries, Inc., as manufacturers of the machinery, were made parties defendant. After a lengthy trial, the jury returned a verdict in favor of the plaintiffs, Reddick and his wife, against only two of the defendants, J. M. McClurd and McClurd Enterprises, Inc. The latter two defendants appeal on the general grounds, and on the specific grounds, that (1) the verdict exonerating the other defendants was inconsistent with the verdict against the appellants, (2) a portion of the charge was error, (3) the plaintiffs' attempted introduction of evidence was error, and (4) J. M. McClurd, as an individual, could not be held liable. Held:
1. Appellants' argument as to the general grounds (enumerations 1 through 3) are that the trial court erred in denying its motion for directed verdict, new trial, and for judgment notwithstanding the verdict because there were no issues of fact and the evidence demanded a finding that the appellants were not negligent. The allegations of negligence were that the appellants breached their duty to protect the plaintiff employee from injury from an admittedly dangerous piece of machinery. Appellants contended that there was no duty to provide an absolutely safe place to work, and that Reddick's negligence contributed to his injury when he 'wandered into' an obviously dangerous place and failed to heed warnings which were given before and when the machinery was placed into motion. The evidence reveals that there were factual disputes as to the appellants' knowledge of the plaintiff's presence near the machinery, the safety of the design of the machinery, the plaintiff's regard for his own safety, and the degree of warnings which could have been given or which were given. These were all issues which were within the peculiar province of the jury. Mathis-Akins, etc., Inc. v. Tucker, 127 Ga.App. 699(1), 194 S.E.2d 604; Peacock v. Sheffield, 115 Ga.App. 116(2), 153 S.E.2d 619; Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726; Cox v. Norris, 70 Ga.App. 580(3), 28 S.E.2d 888. Cf. Jones v. Aaron, 124 Ga.App. 738, 186 S.E.2d 132.
2. There was no inconsistency in the verdict which found only appellants J. M. McClurd and McClurd Enterprises, Inc., liable to the plaintiffs and which exonerated all other defendants. One of the other named defendants, Emory Young, actually started the machinery in motion upon direction from J. M. McClurd. Even if Young were acting as the agent of J. M. McClurd when he started the machinery, the jury was authorized to find that McClurd's liability was not solely derived from Young's act and not 'dependent entirely on the principle of respondeat superior' (Roadway Express, Inc. v. McBroom, 61 Ga.App. 223, 227, 6 S.E.2d 460, 462), but was based on other independent acts of negligence....
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