Seagraves v. ABCO Mfg. Co., 44922
| Decision Date | 29 January 1970 |
| Docket Number | No. 2,No. 44922,44922,2 |
| Citation | 173 S.E.2d 416,121 Ga.App. 224 |
| Parties | Samuel J. SEAGRAVES v. ABCO MANUFACTURING COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial judge did not err in overruling the motion for new trial for any reasons argued and insisted upon.
This is an action for personal injuries caused by the explosion of a tank which the plaintiff was attempting to weld at the request of the defendant. In a previous appearance this court reversed a judgment in favor of the defendant based on a directed verdict. Seagraves v. ABCO Manufacturing Company, 118 Ga.App. 414, 164 S.E.2d 242. Another trial resulted in a verdict and judgment in favor of the defendant, and the plaintiff now appeals from the order of the lower court overruling his motion for a new trial.
Wall & Campbell, Alford Wall, Parker & Parker, Richard L. Parker, Atlanta, for appellant.
Lokey & Bowden, Glenn Frick, Atlanta, for appellee.
1. The first two enumerations are based on the action of the trial court in allowing the defendant to amend its answer by pleading a violation of § 712 of the Fire Prevention Ordinance of the City of Atlanta in effect at the time of the incident as negligence per se by the plaintiff, and in admitting in evidence a certified copy of the ordinance, which provided that:
'No welding, brazing, soldering or cutting of any tank, drum or other container, which has contained any flammable liquid, shall be carried out unless such container has been made oil and gas free through steaming and scouring or the interior air space has been tested and found to contain an inert gas mixture of less that five percent oxygen.'
The plaintiff argues that the ordinance places no greater obligation for compliance on the plaintiff than on the defendant, that the amendment wrongfully shifted the burden of compliance to the plaintiff, that the ordinance was inadmissible without a foundation showing the defendant to be within the class of persons for whose benefit it was enacted, and that it is apparent that it was designed to prevent first and not to negate liability for any negligent acts of the defendant.
The ordinance speaks for itself as a safety regulation purporting to protect anyone and everyone by imposing a duty on any and every person to refrain from the 'welding, brazing, soldering or cutting of any tank' without first determining whether the tank 'has contained any flammable liquid' and then determining, if the tank is in this category, that it 'has been made oil and gas free through steaming and scouring or' in the alternative, that 'the interior air space has been tested and found to contain an inert gas mixture of less than five percent oxygen.' Regardless of what the defendant knew about the tank or may have done to prepare it for welding, and regardless of what information the defendant may have furnished the plaintiff in this respect, he was obligated, as an independent contractor hired by the defendant to do the welding, to ascertain whether the tank had been used as a container for flammable liquid, and if so, that it had been prepared for welding as required by the ordinance, before proceeding further.
The trial judge properly allowed the defendant to plead a violation of the ordinance as negligence per se of the plaintiff as a defense to liability, and it necessarily follows that it was proper to admit proof of the ordinance, and to instruct the jury thereon.
2. The third enumeration is based on the refusal of the court to allow testimony of a fire inspector of the City of Atlanta to the effect that the tank, as originally built for the defendant by the plaintiff, was not constructed so that the cover would close automatically at certain temperatures, as required by a section of the Fire Prevention Ordinance of the city, if intended for use as a container for flammable liquid. The plaintiff contends that the testimony was relevant for the purpose of showing a lack of notice to the plaintiff that the tank was intended for flammable liquid.
The real issue as to notice arises in respect to the actual use of the tank as a container for flammable liquid before the plaintiff undertook to repair it, and not in respect to any inferences of probable use based on its design. No harmful error is shown by the ruling of the court sustaining the objection to this testimony.
3. In the fourth enumeration the plaintiff asserts error on the failure of the court to give requested instructions based on quoted language appearing in Huey v. City of Atlanta, 8 Ga.App. 597(3), 70 S.E. 71 regarding the duty to warn one hired to make repairs of some extraordinary danger or perilous condition.
A careful reading of the charge shows that the instructions as given amply cover the principle involved in the requested instructions. There is presently no requirement in this State that the court instruct in the exact language of a request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue. See ...
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Golden Peanut Co. v. Bass
...(Punctuation omitted.) Harper v. Samples, 164 Ga.App. 511, 514-515(5), (6), 298 S.E.2d 29 (1982), quoting Seagraves v. ABCO Mfg. Co., 121 Ga.App. 224, 226(3), 173 S.E.2d 416 (1970). We will first discuss whether the evidence made the disputed charge "directly applicable to a material issue"......
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Claxton Poultry Co., Inc. v. City of Claxton
...request was covered in the charge as given. Hardwick v. Price, 114 Ga.App. 817, 821(3), 152 S.E.2d 905; Seagraves v. ABCO Mfg. Co., 121 Ga.App. 224, 226(3), 173 S.E.2d 416; Atlanta & W.P.R. Co. v. Armstrong, 138 Ga.App. 577, 581(5), 227 S.E.2d 6. The next complaint is that the trial court e......
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G. E. C. Corp. v. Levy
... ... Smith & Plaster Co. of Ga., 123 Ga.App ... 443, 444, 181 S.E.2d 303, 305 ... Price, 114 Ga.App. 817, 821(3), 152 S.E.2d 905; Seagraves v. ABCO Manufacturing Co., 121 Ga.App. 224, 226, 173 S.E.2d ... ...
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Glaze v. Bailey, s. 48543
...favor or affection, prejudice or sympathy, toward either party whatsoever.' This complaint is not meritorious. Seagraves v. ABCO Mfg. Co., 121 Ga.App. 224, 226(3), 173 S.E.2d 416. Further, the request as submitted was argumentative, and one-sided, in that it would have left the jury under t......