Thomas v. Georgia Granite Co.

• Decision Date: 12 August 1913
• Citation: 79 S.E. 130,140 Ga. 459
• Parties: THOMAS v. GEORGIA GRANITE CO. et al.
• Court: Georgia Supreme Court

79 S.E. 130

140 Ga. 459

THOMAS v. GEORGIA GRANITE CO. et al.

Supreme Court of Georgia

August 12, 1913

Syllabus by the Court.

The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant's labor, and where the work in its progress necessarily changes the character for safety of the place in which it is performed as it progresses.

A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.

There was no error in dismissing the petition on general demurrer.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Jennie Thomas against the Georgia Granite Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Moore & Branch, of Atlanta, for plaintiff in error.

Jas. L Key and Tindall & Silverman, all of Atlanta, for defendants in error.

ATKINSON J.

1. On demurrer this petition is to be construed most strongly against the plaintiff. The allegations that the defendant knew, or ought to have known, that the place was unsafe amount to no more than a charge of implied notice that the place was unsafe. Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (6), 48 S.E. 438; Fraser v. Smith & Kelly Co., 136 Ga. 18, 70 S.E. 792. The general charge that the plaintiff's husband was free from fault, and by the exercise of ordinary care could not have prevented the injury to himself, when considered in connection with the other allegations of the petition in regard to the work which he was doing, and his opportunity to see and know the dangers of the place, are mere conclusions of the pleader, and add nothing to the special facts alleged, upon which the court is to pass in determining whether the husband was free from fault, and whether by the exercise of ordinary care he could have prevented the injury to himself. There being no allegations to the contrary, it must be assumed that he was of ordinary intelligence and skilled in the business in which he was engaged, and that he was laboring under no physical defect or disability which rendered him incapable of appreciating the situation and knowing the danger incident to his employment. The sides of the ditch caved in at the very place where he was working. He was engaged in throwing out dirt from the bottom of the ditch. It is inferable that the work which he was doing tended directly to undermine the walls and to render the place unsafe. Such would be the natural result, and there was no allegation that it did not do so, and that his work did not cause the walls of the ditch to cave. The facts bring the case within the principle of Holland v. Durham Coal & Coke Co., 131 Ga. 715, 63 S.E. 290, where it was held: "The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant's labor and where the work in its progress necessarily changes the character for safety of the place in which it is performed, as it progresses." This principle was overlooked in the decision of the case of Southern Bauxite Mining Co. v. Fuller, 116 Ga. 695, 43 S.E. 64, which was not rendered by an entire bench of six Justices. The Holland Case was decided by six Justices, and is controlling. See, also, Donato Citrone v. O'Rourke Engineering Con. Co., 188 N.Y. 339, 80 N.E. 1092, 19 L.R.A. (N. S.) 340, and note 3e on page 358.

The basis of the suit was that the defendants had failed to provide the servant with a safe place at which to work. It appearing from the allegations that, on account of the character of the work in which the servant was employed, the master was not under any duty to furnish him a safe place, the court properly sustained the demurrer.

2. The case involves the further principle of assumption by the servant of the ordinary risks of the employment, against the dangers of which he is bound to exercise his own skill and diligence to prevent injury to himself. The plaintiff's husband was employed to make a ditch. This involved the creation of the danger from which he suffered injury. He was bound to know that under natural laws there would be more or less danger of the sides caving in as the work of deepening the ditch progressed. It was not alleged that there was anything...