139 Ga. 431 | Ga. | 1913
Where a servant was injured by a dangerous or defective instrumentality not owned nor controlled by the master, nor, so far as it appears to the contrary, previously used by the master, but used by . the servant by the direction of the master on the occasion when the servant was injured, the master was not liable,—it not appearing that he or the servant knew of the defective or dangerous condition or character of the instrumentality, but it being apparent that the servant had equal means with his master of knowing of the peril of complying with his order, or by the exercise of ordinary care might have known thereof. Dunlap v. Richmond & Danville R. Co., 81 Ga. 136 (7 S. E. 283); Central R. Co. v. McClifford, 120 Ga. 90, 93 (47 S. E. 590); Southern Ry. Co. v. Taylor, 137 Ga. 704 (73 S. E. 1055), and cases cited; Civil Code, §§ 3030, 3031.
(a) Accordingly, the court properly sustained a general demurrer to a petition, the material substance of which was as follows: The plaintiff’s husband, John Henry Roster, was employed by the defendant, the Walker Roofing Company (which was engaged in the business of covering buildings with roofs, and repairing the same), as a laborer whose duty was that generally required by the work carried on and conducted by the defendant. On a given date he and several other employees were ordered by the defendant to repair the roof on a certain apartment house. When they arrived at the building, they “discovered that there was no trapdoor leading [to] the roof of said apartment house, and that the only means of getting on the roof of said building was by climbing an electric-light pole . . near the west side of said apartment house. Said John Henry was thereupon ordered by said defendant to climb the pole, and from said pole to climb to the roof of said apartment house. Said pole was owned, operated, and controlled by the Georgia Railway and Electric Company of Atlanta, Georgia; . . to said pole were hung and suspended a number of electric wires for the purpose of conducting the electric current; [and] at the time said Roster
Judgment affirmed.