24 Ga. App. 524 | Ga. Ct. App. | 1919
Mrs. Estelle Graybill sued W. A. Day & Company for damages resulting from a fall as she descended a pair of steps in the building where she worked for the defendant. A general demurrer to the petition was overruled and the defendant excepted. The 8th paragraph of the petition is as follows: “It is averred, that defendant had negligently allowed the tread of the bottom step to become loose and insecure, which was unknown to the plaintiff, nor had she equal means with the master for ascertaining this fact, nor had she been warned of this defective condition of said steps, and that when she stepped on the same the board turned under her foot and threw her as alleged; that defendant was negligent in allowing the steps to get out of repair, making it unsafe for employees to use the same, and negligent in not inspecting same and warning plaintiff of the defective condition of the said steps, which could have easily been ascertained by inspecting same; negligent in not having it repaired and placed in good order, so that it could be used for the purpose and intent, especially when defendant knew that plaintiff and other employees were daily and constantly using said steps when working in and about the store.” Further than is stated in this paragraph, there is no allegation of knowledge of the master of the condition of the steps. While the plaintiff alleges in this paragraph that she did not have equal means with the master of ascertaining the
The allegations in the petition must be construed most strongly against the pleader, and, so construing them, the latter part of the paragraph quoted above shows that the plaintiff had at least equal means with the master of knowing the defective condition of the steps. If the servant “had equal means with the master of discovering the danger, any injury resulting to him would be the result of his own fault.” McDonnell v. Central Railway Co., 118 Ga. 86, 89 (44 S. E. 840). “If both the plaintiff and the defendant had equal opportunities of discovering this patent defect in the appliance on the day the accident occurred, then the defendant would not be liable for an injury resulting therefrom.” Stewart v. Seaboard Air-Line Railway, 115 Ga. 628. In the case of Ludd v. Wilkins, 118 Ga. 525, 526 (45 S. E. 429), the injury to the plaintiff’s husband was alleged to have been caused by the slipping of a plank. In the opinion it was said: “Let it be conceded that it was negligence on the part of defendant not to have had the plank fastened in some way. It is apparent from the testimony that the plaintiff’s husband had equal means with the defendant of knowing that the plank was not fastened, and by the exercise of ordinary care could have discovered this fact. Upon one who brings a suit against a master for injuries to a servant it is incumbent to show not only negligence on the part of the master, but due care on the part of the servant; and it must appear that the servant injured did not know and had not equal means of knowing all that which is charged as negligence to the master, and by the exercise of ordinary care could not have known
thereof. Civil Code, § 2612 [now § 3131]; Daniel v. Forsyth, 106 Ga. 568 [32 S. E. 621], and cases cited; Winship Co. v. Burger, 110 Ga. 296 [35 S. E. 120]; DeLay v. Ry. Co., 115 Ga. 934 [42 S. E. 218].” From the above it is apparent that the petition in this case fails to set forth a cause of action against the defendant, and the court erred in overruling the demurrer to the petition. See Taylor v. Virginia-Carolina Chemical, Co., 4 Ga. App. 705 (62 S. E. 470); Williams v. Atlantic Coast Line Railroad Co., 18 Ga. App. 120 (89 S. E. 158), and cit.
Judgment reversed.