Moody v. Hardeman

• Decision Date: 11 February 1932
• Docket Number: 21497.
• Parties: MOODY v. HARDEMAN et al.
• Court: Georgia Court of Appeals

162 S.E. 653

44 Ga.App. 676

MOODY v. HARDEMAN et al.

No. 21497.

Court of Appeals of Georgia, Second Division

February 11, 1932

Syllabus OPINION.

Plasterer injured when building collapsed because of insecure support held not prevented from recovering against employer on theory plasterer was engaged in constantly changing character of place for safety or in making it more dangerous.

The rule that a master is not liable to furnish his servants a safe place in which to work where servants' work consists in making a dangerous place safe, or in constantly changing character of place for safety as the work progresses, did not prevent such plasterer's recovery, since he did not assume the danger of such collapse merely by virtue of his service as plasterer.

Though servant must observe dangers of place of work obvious on exercising ordinary care, he need not inspect place for latent defects.

Danger arising from unsafe place to work is not risk assumed by servant.

Plasterer injured by collapse of building caused by insecure supports was not chargeable with knowledge of such defects unless readily discernible without inspection.

Not plasterer, but his employer, was chargeable with knowledge of "latent defects" in support of building collapsing and injuring plasterer.

"Latent defects" are those which are only discoverable by proper inspection.

Employer held liable to plasterer injured by collapse of building caused by employer's negligence in selecting materials and planning building's construction regardless of fellow servant's negligence.

Employee injured because of foreman's negligence may treat foreman and employer as joint tort-feasors and sue both or either.

Such employee may sue both the foreman and employer as joint tort-feasors, or either of them, since the negligence of the foreman having authority to supervise master's business and to employ and discharge employees and direct their work is imputable to employer.

In suit by plasterer injured by collapse of building caused by insecure support against employer, res ipsa loquitur held applicable.

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

Suit by A. P. Moody against W. O. Hardeman and another. To review the judgment in favor of defendants, plaintiff brings error.

Reversed.

Poole & Fraser, of Atlanta, for plaintiff in error.

Branch & Howard, of Atlanta, for defendant in error.

BELL J.

1. The rule that the master is not liable for his failure to furnish his servants a safe place in which to work, "where the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses" (Holland v. Durham Coal & Coke Co., 131 Ga. 715, 63 S.E. 290, 292; Byrd v Thompson, 146 Ga. 300, 91 S.E. 100), will not relieve the master from liability "merely because the servant was engaged in construction work, and that at the time of the injury the object being constructed was in an unfinished state, to some extent changing from day to day. If it were otherwise, it would be difficult to find a case where a workman was engaged in performing labor for a master [where the master would be liable]. Practically all labor normally tends to change the condition of the thing labored upon; otherwise, it would be useless." Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390, 394, 112 S.E. 374, 376. In the present case, the evidence tended to show that, while the building had not been fully completed, the only thing that remained to be done was to finish the plastering, and that the plaintiff and other servants, while working as plasterers, were engaged in doing nothing that caused the place to become more dangerous or in any way changed the character of the place for safety as the work progressed, but that the building collapsed because of insecure supports for the superstructure, or from excessive weight of the roof and its appurtenances, both of which were dangers in the place of work which the plaintiff did not assume merely in virtue of his service as a plasterer. Cf. Tufts v. Threlkeld, 31 Ga.App. 452, 461, 121 S.E. 120.

2. While a servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care, he has the right to assume that his master has performed the duty of furnishing him with a safe place to work, and is under no obligation to inspect the same in order to discover latent defects not open to ordinary observation. A danger arising from an unsafe place is not included among the risks assumed by the servant. King Mfg. Co. v. Walton, 1 Ga.App. 403 (3), 58 S.E. 115; Southern Cotton Oil Co. v. Horton, 22 Ga.App. 155 (1c), 95 S.E. 765.

3. "Whether the plaintiff had the same opportunity as the defendant of knowing of the defects alleged and proved would depend upon the character of such defects, whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it...