Strickland v. Howard

• Decision Date: 08 July 1994
• Docket Number: No. A94A0795,A94A0795
• Citation: 447 S.E.2d 637,214 Ga.App. 307
• Parties: STRICKLAND v. HOWARD.
• Court: Georgia Court of Appeals

Page 637

447 S.E.2d 637

214 Ga.App. 307

STRICKLAND v. HOWARD.

No. A94A0795.

Court of Appeals of Georgia.

July 8, 1994.

Reconsideration Denied July 29, 1994.

Reinhardt, Whitley & Wilmot, Glenn Whitley, Tifton, for appellant.

Whelchel, Whelchel & Carlton, James C. Whelchel, Moultrie, for appellee.

SMITH, Judge.

Freddie Lee Howard, a farm employee, brought this action against his employer, Paul Strickland, seeking recovery for an eye injury allegedly resulting from Strickland's negligence. ¹ On the trial of the case, a jury found in favor of Howard, and Strickland appeals.

1. Strickland contends the trial court erred in failing to grant his motion for directed verdict. "A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.... Where there is 'some evidence,' or 'any evidence' supporting the respondent's assertions, disputed issues are created which are for the jury's resolution." (Citations and punctuation omitted.) Jones v. Abel, 209 Ga.App. 889, 890(2), 434 S.E.2d 822 (1993). Construed most strongly to support the jury's verdict, the evidence showed that Strickland, a farmer, purchased a tract of land and employed Howard to clean it up. The clearing was done with a rotary cutter towed by a tractor and supplied with power from the tractor by means of a "power takeoff" or "PTO." The tractor was an older model, and its clutch was worn to the point that the PTO could not be engaged or disengaged without turning off the tractor motor. The evidence is uncontroverted that Howard was aware of this clutch problem. Howard acknowledged he was aware of the propensity of a rotary cutter to throw objects. He also acknowledged he did not read the warnings printed on the rotary cutter itself.

When Howard reported to work on the afternoon of the incident, Strickland accompanied him to a former peach orchard that needed clearing, but Strickland did not inspect the area to be cleared before beginning work. Howard, driving the tractor and towing the rotary cutter, approached an old fence, and Strickland motioned to him to turn. As he made the turn or shortly thereafter, Howard heard the rotary cutter make an unusual noise. He turned to look without shutting off the tractor, and something struck him in the eye, lacerating his cornea. Later inspection revealed a pile of fence posts and wire concealed in the weeds and brush. Strickland and Howard both denied any prior knowledge of the presence of the posts and wire, and both testified they were not visible from the ground or the tractor.

Howard makes two contentions regarding Strickland's duty as a master to furnish a safe place to work. First, he contends that Strickland violated his duty to provide a safe place to work by failing to inspect for hidden defects in the field where Howard was working. Second, he contends that Strickland violated his duty under OCGA § 34-7-20 to furnish safe machinery because of the defect in the tractor PTO. As discussed in Division 2, infra, we find that no jury issue existed as to Strickland's duty to furnish safe machinery under OCGA § 34-7-20. However, a jury issue was presented as to a breach of Strickland's duty to inspect the workplace for hazards, and the court therefore properly allowed the issue of Strickland's negligence to go to the jury.

" 'The duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant. [Cit.]' " Tect Constr. Co. v. Frymyer, 146 Ga.App. 300, 302(1), 246 S.E.2d 334 (1978). "As to such, the owner has a duty to exercise ordinary care in keeping the premises safe. [Cits.] This includes 'a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.' [Cits.]" Barksdale v. Nuwar, 203 Ga.App. 184, 185, 416 S.E.2d 546 (1992). " 'If the defect is latent, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not on the servant ... the master owes to the servant the duty of inspection.' [Cits.]" Rogers v. Bragg, 117 Ga.App. 295, 297, 160 S.E.2d 217 (1968).

The law requires the diligence of an ordinarily prudent person in making the premises safe, Barksdale, 203 Ga.App. at 185, 416 S.E.2d 546, and issues of diligence, negligence, and contributory negligence are issues for jury determination except in plain and indisputable cases. Johnson v. Ray, 206 Ga.App. 262, 263(1), 424 S.E.2d 892 (1992). Strickland was present on the site and undertook to direct Howard in his cutting of the field. There was also evidence that some debris was visible in the field, such as the old fence, an electric fence, a partially built barn, and other piles of lumber. Therefore, a jury question existed as to whether Strickland breached his duty to examine the field for other, similar debris that reasonably might be expected to lie hidden in the weeds and brush.

2. Strickland also complains that the trial court's charge on OCGA § 34-7-20 was not adjusted to the evidence. The trial court instructed the jury on Strickland's duty to provide a safe place to work and to warn an employee with respect to any dangers incident to the work, then separately instructed the jury with respect to Strickland's duty to furnish safe machinery under OCGA § 34-7-20. That Code section provides: "The employer ... shall use [ordinary] care in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto."

A companion Code section, OCGA § 34-7-23, explicitly provides: "In actions for injuries arising from the negligence of the employer in failing...