In this suit brоught by a servant against his master based on his having been required to work in an unsafe place, we are constrained to revеrse the trial court’s denial of the defendant master’s summary judgment motion because this appeal is controlled adversely to the employee under the cases of
Taff v. Harris,
1. " '[A] servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself, and in cases of injury it must appear that the servant did not know of the danger and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof. Code § 66-303;
Ludd v. Wilkins,
In applying these principles to the instant appeal we adopt the version of the incident as recited in the well-argued but losing brief presented in behalf of the plaintiff employee who sued his employer for injuries sustained when he fell from a roof while both parties were engaged in a two-man repair job on an apartment located on defendant’s farm. Thаt brief designates the servant as "Appellee” and the master as "Appellant.” We quote therefrom as follows: "Appеllant told appellee to stand on a 2"x 4" plate line located approximately eight to nine feet above the ground so that appellant could hand sheets of plywood to appellee, and appellee cоuld place the sheets of plywood on the roof of the apartment. Appellee tried to tell appellаnt that there was not enough room on the plate line, that the old existing roof was rotten and that it was dangerous. But because of the possibility of rain that day, appellant was in a hurry to get the plywood decking on the roof, and insisted that appеllee get up on the 2" x A" plate line, even though scaffolding was available and located only 60-75 yards away. Since appellant was the boss and appellee was working for him, appellee complied with his employer’s instructions.
"The sheets of plywood were approximately 4x 6-8' in size and weighed roughly 60-70 pounds each. Appellant passed the plywood to appellee by holding the plywood at the bottom and sticking it straight up in the air so that appellee could grab the plywood, pull it up and sling it around on top of the roof. The fourth sheet of plywood that appellee received in this manner caught on a tree *158 limb and started to fall. Seeing that the plywood was going to strike appellant in the back, aрpellee yelled 'look out,’ grabbed the plywood and slung it against the building. Appellant was bending over to pick up another piece of plywood, and appellee prevented the plywood from hitting appellant in the back, but in doing sо, he lost his balance and fell from the plate line. Appellee landed on a concrete surface, catсhing himself on his hands and hitting his right knee on the concrete.”
We recognize the situation that defendant was the "boss” but plaintiffs voluntary cоmpliance with his employer’s request despite his own admitted knowledge of the dangers (R. 97) brings him within the rule stated in
Fricks v. Knox Corp.,
Plaintiff earnestly urges that
Pappadea v. Clifton,
2. Plaintiff also sought to rely upon the Occupational Safety and Health Act of 1970 (29 USCA § 651). OSHA (which is the acronym by which this statute is commonly referred to) does not apply here because the Act states that it does not "enlarge оr diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under аny law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 USCA § 653 (b) (4). Morеover, it is obvious that one engaged in repairing a roof located on his farm in Clarke County, Georgia, can not be said to be "engaged in a business affecting commerce” so as to be within OSHA’s definition of an employer. 29 USCA § 652 (b).
3. "If the evidence introduced by movant pierces the pleadings and discloses the absence of a right of recovery, the grant of summary judgment is proper and should follow.
Scales v. Peevy,
Judgment reversed.