Otis Elevator Co. v. Rogers

• Decision Date: 07 October 1924
• Docket Number: 4082.
• Citation: 125 S.E. 60,159 Ga. 53
• Parties: OTIS ELEVATOR CO. v. ROGERS.
• Court: Georgia Supreme Court

125 S.E. 60

159 Ga. 53

OTIS ELEVATOR CO. v. ROGERS.

No. 4082.

Supreme Court of Georgia

October 7, 1924

Certified Questions from Court of Appeals.

Action by T. I. Rogers against the Otis Elevator Company. Judgment for plaintiff, and defendant brings error to Court of Appeals, which certified questions to Supreme Court. Case returned without instructions.

Bryan & Middlebrooks, W. R. Tichenor, and J. C. Davis, all of Atlanta, for plaintiff in error.

Reuben R. Arnold, Lowry Arnold, and E. C. Hill, all of Atlanta, for defendant in error.

After very careful consideration of the questions propounded by the Court of Appeals, the Supreme Court is equally divided in opinion. RUSSELL, C.J., BECK, P.J., and GILBERT, J. entertain the following views:

The determination of the first question submitted by the Court of Appeals is not altogether free from difficulty. We are of the opinion that a nondelegable duty of the master is to use ordinary care in providing his servant a safe place in which to work. This statement of the rule has found frequent expression in many decisions of this court. In Atlanta & Charlotte Air Line Ry. v. Ray, 70 Ga. 674 (2a), it was said:

"The duty rested on the company to properly select and superintend its operatives, its machinery, appliances and appointments of every sort used in its business. It was a guarantor that all reasonable and proper care had been * * * exercised in the performance of those duties, and its liabilities should be limited to a failure to meet its obligations in this respect."

It would seem that, if a master had used ordinary care to make the place of work safe, he would in every case be relieved from liability. There is in fact but little substantial difference between providing a reasonably safe place to work and using reasonable diligence to make such a place safe. The rule laid down in Middle Georgia & Atlantic R. Co. v Barnett, 104 Ga. 582, 30 S.E. 771, Chenall v. Palmer Brick Co., 117 Ga. 108, 43 S.E. 443, and Norris v American Railway Express Co., 156 Ga. 150, 118 S.E. 686 is, in our opinion, correct. In some cases the rule has been stated by this court to be that it was the duty of the master to furnish a "reasonably safe place." Such is the ruling in Jackson v. Merchants' & Miners' Transportation Co., 118 Ga. 651, 45 S.E. 254. In Atlantic, etc., Railroad v. Reynolds, 117 Ga. 47, 43 S.E. 456, it was said that the master is held to only ordinary care in furnishing his servant "a reasonably safe place to work." In Betts v. Hancock, 139 Ga. 198, 77 S.E. 77, it was said that it was inaccurate for the court to instruct the jury that "it was the duty of the defendant in this case to have used, in the transaction under investigation, ordinary care and diligence, as I have defined it to you, in furnishing the plaintiff a safe place to work," but a new trial was not granted because of this instruction. The verbiage used by this court in passing upon this question has not always been precisely the same but the lack of harmony has been more apparent than real.

The oldest ruling by this court precisely in point is that in the case of Middle Georgia & Atlantic R. Co. v. Barnett, supra, a full-bench, unanimous decision, and should be adhered to. It followed, in principle, the case of Atlanta & Charlotte Ry. v. Ray, supra.

Whether or not the master is liable in any given case depends upon whether or not he has been derelict in the duty imposed upon him by law, to wit, the exercise of ordinary diligence. If he has been faithful to that duty, no liability can attach to him for any injury that may result. If he has failed in that duty, liability will attach. In order to determine whether he has been faithful or derelict, we must look to the standard of duty prescribed by law. In such a case as this the well-established rule in this state is that the master must exercise ordinary care; that is, such care as every prudent man would exercise under the same circumstances. What every prudent man would do under the circumstances would vary according to the time, place, and conditions. "The standard of ordinary and reasonable care is invariable, such care being that of every prudent man. Civil Code, § 2061. But the care of a prudent man varies according to circumstances dependent upon the degree of danger. * * * 'What is the precise legal intent of the term "ordinary care" must, in the nature of things, depend upon the circumstances of each individual case. It is a relative and not an absolute term.' " Central Railroad Co. v. Ryles, 84 Ga. 430, 11 S.E. 499; 1 Hopkins' Personal Injuries (2d Ed.) §§ 2, 87.

The fixed standard of the law that the master shall furnish a safe place for the servant to work does not impose an absolute duty to furnish a safe place, but the duty is placed upon the master to make an effort to do so. As stated in 3 Labatt on Master and Servant, 2410, § 907:

"As the master is deemed to be culpable if he fails to exercise that degree of care which is denoted by one or other of the expressions used to describe the hypothetical conduct of a man of ordinary prudence, so, on the other hand, he is not required to satisfy any higher standard of diligence or skill than that which such a man

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