Wright v. Concrete Co., 39753

• Decision Date: 14 November 1962
• Docket Number: No. 3,No. 39753,39753,3
• Citation: 107 Ga.App. 190,129 S.E.2d 351
• Parties: J. W. WRIGHT v. The CONCRETE COMPANY
• Court: Georgia Court of Appeals

Page 351

129 S.E.2d 351

107 Ga.App. 190

J. W. WRIGHT v. The CONCRETE COMPANY.

No. 39753.

Court of Appeals of Georgia, Division No. 3.

Nov. 14, 1962.

Rehearing Denied Dec. 19, 1962.

Syllabus by the Court

1. In an action between a plaintiff employee and an alleged third party tortfeasor, the servant assumes the risks incident to his employment, but not the risk of negligence by the third party.

2. It was error for the trial court to charge in effect that if the jury should find the plaintiff had placed himself in a dangerous position, and would not have been injured if he had not been in that position, then he could not recover even though he was struck as a result of the defendant's negligence, for there was no duty on the plaintiff to anticipate in addition to the normal risks of the position which he had assumed the additional risk of negligence on the part of another.

3. The court should not so instruct the jury as to leave to their discretion the question of what a person in the exercise of ordinary care might do, rather than what he would do.

4. Where the court instructs the jury fairly on the contentions of the parties, and generally as to where the burden of proof lies, it is not error in the absence of request to fail to charge specifically as to the particular issues on which the plaintiff has the burden of proof and on which the defendant has the burden.

5. Failure of the plaintiff to exercise ordinary care for his own safety which will bar him from recovery may consist in negligence proximately causing his injury, or negligence in failing to avoid the consequences of the defendant's negligence after it becomes known to him, or failure to exercise that degree of care generally which the ordinarily prudent person would show and which, had he been in the exercise of such care, would have revealed the defendant's negligence to him in time of avoid it even though he had no reason to anticipate that such negligence existed. Otherwise ordinary negligence on the part of the plaintiff before the duty arises on his part to discover and avoid the negligence of the defendant will not preclude recovery, but will diminish the damages.

6-9. The remaining instructions to the jury show no cause for reversal.

J. W. Wright filed an action for damages in the City Court of Columbus against The Concrete Company, alleging in substance that the defendant was engaged in dumping concrete into a form prepared for the construction of a swimming pool over a chute running from the truck to the form; that it was necessary for the plaintiff to hold a latch under the chute to prevent the chute from uncoupling and to hold it steady while the concrete was being poured into the form; that because of the negligence of the defendant's employee who was ejecting the concrete in failing to have the chute properly supported, failing to set it up at a proper angle, having the concrete of too stiff a mixture, and failing to eject it properly, the concrete came over the sides of the chute, struck him and caused him to fall into the excavation as a result of which he was severely injured. The proof showed that the plaintiff was an employee of the building contractor and had taken his position under the pouring chute as alleged at his employer's instructions. The trial resulted in a verdict for the defendant. The plaintiff filed a motion for new trial which, after amendment, was overruled, and this judgment is assigned as error.

Kelly, Champion & Henson, Forrest L. Champion, Jr., Columbus, for plaintiff in error.

Foley, Chappell, Young & Hollis, Columbus, for defendant in error.

RUSSELL, Judge.

1. (a) Special ground 4 of the amended motion for new trial assigns error on the following excerpt from the charge: 'An employee who knowingly assumes a dangerous position or goes to a place of danger at the instruction of his superior may have a right of action against his employer if he is injured as a result of being in that dangerous position or place, but as to third persons he must be held to have assumed that position or entered that place voluntarily.'

While the instructions given regarding the relationship between employer and employee would not be a complete statement of the law in an action between those parties (see Southern Cotton-Oil Co. v. Gladman, 1 Ga.App. 259(5, 6), 58 S.E. 249) the last clause correctly sets out the relationship between the servant and third parties. In an action such as this between a plaintiff who is a servant of one not connected with the litigation and a defendant tortfeasor who is not connected with the employment, the servant assumes all risks incident to the employment except those arising from any negligence of the defendant. Coggin v. Central R. R. Co., 62 Ga. 685; Southern Ry. Co. v. Allen, 88 Ga.App. 435, 448(10), 77 S.E.2d 277. Since the employer-employee relationship is not here involved, it might, however, be more accurate for the court to word this instruction if given on another trial to the effect that the jury is not concerned with the master-servant relationship and that regardless of whether or not an employee who is injured as a result of being in a dangerous position or place of danger has a right of action against his employer, as to third persons he must be held to have assumed that position or entered that place voluntarily.

(b) This being true, it was not harmful error to change further that 'The defendant is not responsible for the acts of others or of its employees when done outside the scope of the employment.' While it is true that there was no contention by the defendant that its employee was not acting within the scope of his employment, and therefore such portion of the sentence was not involved under the evidence, the very fact that it was not makes it difficult to see wherein the charge could have been misleading or prejudicial. Long v. Gilbert, 133 Ga. 691(5), 66 S.E. 894. Special ground 9 is without merit.

2. (a) Special ground 6 complains of the following: 'A person who voluntarily assumes a precarious or unstable position in the presence of a moving force and object must be held to have assumed the added danger resulting from his position, if he is struck by such moving force or object but would not have been injured except for his precarious or unstable position, even though the fact that he was struck was the result of the negligence of another.' (Emphasis added). Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6, which is primarily relied upon in support of this statement is actually a good example of its deficiencies. There it was stated: 'One who knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter's negligence.' The latter is a statement that 'there can be no recovery of damages where the injured party has failed to use ordinary care to prevent an injury to himself, unless the injury be wilfully and wantonly inflicted upon him. Thus, one is bound at all times to exercise ordinary care for his own safety, even before the negligence of another is or should be apparent.' Id., p. 667, 88 S.E.2d p. 9. Assumption of risk is 'a matter of knowledge of the danger and intelligent acquiescence in it,' while lack of ordinary care for one's own safety, or contributory negligence, 'is a matter of some fault or departure from the standard of reasonable conduct * * *. The two may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.' Roberts v. King, 102 Ga.App. 518, 521, 116 S.E.2d 885, 887, citing Prosser, Law of Torts (2d Ed.) § 55, p. 305. In the Southland Butane case the plaintiff, in the helpless stupor of drunkenness, lay down on a highway and was run over by a passing car. In so doing he was held to place himself outside the pale of those whose presence other travellers on the highway should anticipate, for which reason the defendant owed him no duty until his presence was actually discovered, there being no showing that the defendant was negligent in failing to discover him. But even had there been some negligence in failing to discover him, the act itself was so reckless and hazardous as to bar the plaintiff from recovery. The charge given here fails to restrict its application to cases where the plaintiff is barred by his failure to exercise ordinary care for his own safety, and is therefore much too broad. In a discussion in Thomson Pipe Line Co., Inc. v. Davis, 96 Ga.App. 372, 374, 100 S.E.2d 114 of various cases where the plaintiff was held to have assumed the risk of his position it was pointed out that generally the fact situation related either to circumstances where the plaintiff by his own movements was injured in an encounter with an obvious and static condition, or where the plaintiff placed himself in the way of a normal and non-negligent force emanating from the defendant. In Thomas v. Shaw, 217 Ga. 688, 124 S.E.2d 396, it was stated: 'While it is true, as contended, that golf players assume the risk of dangers ordinarily incident to the game, yet that rule does not apply or extend to a negligent act of a fellow-player; and this is true, since another player on the same course must always exercise ordinary care and diligence not to injure him, and a failure to do so is actionable notwithstanding the assumption-of-risk rule.' It is contended that Thomas supports the charge as given because of the implied holding that ball hit by a player in the usual course of play may go astray and injure another,...