17 Ga. App. 217 | Ga. Ct. App. | 1915
Mrs. Prances Newburn brought suit against the Healey Eeal Estate & Improvement Company, a corporation, for the homicide of her husband. Her original petition was as follows :
“The petition of Mrs. Prances Newburn shows:
“1. The defendant is Healey Eeal Estate & Improvement Com
“'2. Defendant has damaged jDetitioner in the sum of twenty-five thousand ($25,000.00) dollars in the manner hereinafter alleged.
“3. Petitioner shows that she is the widow of William J. New: burn, who was killed on or about June 3, 1913, by means of the following described negligence of the defendant.
“4. Petitioner shows that on or about the above-named date defendant, Healey Eeal Estate & Improvement Company, was constructing in the city of Atlanta, said county, a sixteen-story steel-frame building, now commonly known as ‘The Healey Building.’
“5. Petitioner shows that upon said date her husband, William J. Newburn, was employed by the Bergendahl-Bass Construction Company, which had the contract for the iron work on said building, and was engaged in said work at said time.
“6. Petitioner shows that upon said date her husband was working upon the ninth floor of said building, in charge of a large derrick, with which lumber and material were being hoisted from the seventh to the eleventh floor of said building, to which latter height the steel work upon said building had progressed at that time.
“ 7. Petitioner shows that a lot of lumber had been hooked upon said derrick, that her husband had signalled the engineer to hoist away, and the load was being swung around the building toward the eleventh floor of said building. '
“8. Petitioner shows that as said load of lumber swung about thirty feet above the head of her husband, who at the time was standing on the ninth floor of said building, giving instructions to the engineer, said load of lumber swung and struck the arm of said derrick, causing three of the planks from said load to slip from the chains holding them, and to fall and strike petitioner’s husband, knocking him backwards and causing him to fall through an unplanked opening in said floor, two or three feet wide, and down through eight successive unplanked floors, and to be killed at the bottom.
“9. Petitioner shows that the opening through which her husband first fell was neither covered by a plank nor protected by a
“10. Petitioner shows that the following ordinance of the city of Atlanta, regulating the construction of buildings and defining the duties of the owners thereof with respect thereto, was in force on the date above mentioned, same being section 70 of the building code of the city of Atlanta: ‘All contractors and owners, when constructing buildings, where the floors or filling in between the floor-beams thereof are of fire-proof material or brickwork, shall complete the flooring or filling in as the building progresses, to not less than three tiers of beams below that on which the iron work is being erected. If such buildings do not'require filling in between the beams of floors with brick or other fire-proof material, all contractors for carpenter work, or the owners of the buildings in the course of construction, shall lay the under flooring thereof on each story as the building progresses, to not less than within two stories below the one to which said building has been erected. When double floors are not to be used, such contractor, or the owner, shall keep planked over the floor two stories below the story where the work is being performed. If the floor-beams are of iron or steel, the contractor for the iron or steel work of buildings in course of construction, or the owners of such buildings, shall thoroughly plank over the entire tier of iron or steel beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such buildings, or such spaces as may be designated by -the plans and specifications for stairways and elevator-shafts. If elevating machines or hoisting apparatus are used within a building in course of construction, for the purpose of lifting material to be used in such construction, the contractors or owners shall cause the shafts or openings in such floor to be enclosed or fenced in on all sides by a substantial barrier, at least four feet in height, except on the side and floor where the material is being unloaded.’
“11. Petitioner shows that defendant owns said building just described, and the lot on which same is situated, and did own same at the time her husband was killed, and agreed in consideration of the permit to build, given it by the city, ‘to conform to all
“12. Petitioner shows that defendant was negligent in omitting thoroughly to plank dr cover the floor on which her husband was at work and through which he fell.
“13. Defendant was negligent in omitting to cover, plank, or guard in some way, the hole or opening, two or three feet wide, through which her husband was knocked.
. “14. Defendant was negligent in failing to have planked or covered the succeeding floors through which petitioner’s husband fell to the ground. '
“15. Defendant was negligent in failing to warn petitioner’s husband of the existence of the opening in the ninth floor, and of the fact that the floors beneath were not covered or planked.
“16. Petitioner shows that the above described negligence of the defendant was the approximate cause of her husband’s death, without which same could not and would not have resulted.
“17. Petitioner shows that at the time of his death her husband was a strong, able-bodied man, thirty-two years of age, and earning five dollars per day.
“18. Petitioner shows that in no respect was her husband negligent, nor could he, by the exercise of reasonable care, have avoided the consequences of defendant’s negligence.”
' The plaintiff filed an amendment which was as follows: “1. She strikes from said petition paragraph 6 and inserts in lieu thereof the following: 'Petitioner shows that upon said date her husband was working on the ninth floor of said building, assisting in the operation of a large derrick, located on said ninth floor. She shows that a force of hands at that time, with the use of said derrick, were engaged in removing lumber from the seventh floor to the eleventh floor of said building, to which latter height the steel structural work at that time had progressed. Her husband was at the time actually engaged in receiving signals from a corps of hands on the seventh floor and conveying same to the engineer in charge of the derrick. Said lumber was being loaded on the seventh floor of said building by a gang of men in charge of the superintendent for Bergendahl-Bass Construction Company, and the way and manner in which said lumber was being loaded was not
The defendant demurred to the original petition, and also demurred to the amended petition. The demurrer to the original petition insisted that no cause of action was set out, since the petition showed that no contractual relationship existed between the plaintiff’s intestate and the defendant, and especially that the relationship of master and servant did not exist between them, since the petition affirmatively showed that the deceased was an employee of the Bergendahl-Bass Construction Company, and that no obligation arising out of the relationship of master and servant was due him except from Bergendahl-Bass Construction Company; that the petition showed that the work in and about which the deceased was killed was not work which was being done by the defendant, but was work which was being done by the master of the deceased, to wit, the Bergendahl-Bass Construction Company; that the petition showed that the deceased was directly in charge of, controlling, and directing the work in and about which his death resulted; that the petition showed that the deceased was familiar with the physical conditions under which the work was being done, and was perfectly familiar with the manner in which the work was being done, and if there was any negligence in omitting to plank or cover the floors on which he was standing, such omissions were not only physically known to the deceased, but were the result of his direct supervision; that the petition showed that the proximate cause of the injury was the handling of the derrick which was under the direction, control, and supervision of the deceased. To the petition as amended the defendant demurred as follows: “Further demurring, defendant says, that said petition as amended shows that the deceased was a servant of the Bergendahl-Bass Construction Company, engaged in the work of removing lumber from the seventh floor to the eleventh floor, which said removal of said lumber was being accomplished through the medium of a derrick; that said deceased was actively participating in said work and in the management of said derrick, and that he was a fellow servant with
In the present case, according to the allegations of the petition, the plaintiff’s husband was the servant of the contractor, who had undertaken to erect the steel framework of a building which the defendant company “was constructing,” and his death was brought about by the concurrent operation of two separate and distinct causes, — the one cause resulting from the negligence of one or more of his fellow servants, and the other from the negligence of the owner of the building in failing to provide a reasonably safe place for the deceased to work while on the premises as a licensee engaged in carrying on the work of the contractor. For the negligence of other servants of the contractor the defendant of course could not be held liable to the plaintiff on account of injury to the deceased, who was not even its servant; but if, as is insisted by the plaintiff in error (who was the plaintiff in the court below) and as alleged in the petition, the death of the plaintiff’s intestate resulted from
Since pleadings are always to be construed most strongly against the pleader (Charleston R. Co. v. Stockyard Co., 115 Ga. 70, 41 S. E. 598), it becomes important, in the light of the ruling in Butler v. Lewman, supra, to determine whether the petition in this case affirmatively and distinctly alleges that the defendant was in charge of the construction of the building as a whole, and was in general control of the premises upon which it was being erected. Paragraph 4 of the petition alleges that the defendant “was constructing in the city of Atlanta, said county, a sixteen-story steel-frame building, now commonly known as ‘The Healey Building.’” Paragraph 5 of the petition alleges that on the' day he met his death the husband of the plaintiff “was employed by the Bergendahl-Bass Construction Company, which had the contract for. the iron work on said building, and was engaged in said work at said time.” Nowhere in the petition, as originally drawn or as amended, can be found any allegation which more distinctly sets forth the connection existing between the owner of the building in process of construction and the work being carried on by the Bergendahl-Bass Construction Company at the time the death of the plaintiff’s husband occurred, or more distinctly sets forth the degree of control exercised by the owner over the building itself or the premises upon which the building was being erected. Nothing further appears as to this than may be inferred from the vague general statement that the defendant “was constructing” the building. Following the rule already referred to, we may safely assume that so far as the allegations in the petition of the plaintiff are concerned, the contractor, and not the owner, was in the control of the premises, and had entire charge of all the work then being carried on, in pursuance of the general plan of the owner to finish ■ and complete the sixteen-story building described in the petition. This being true, and without any other and further allegations rendering the defendant liable, it is apparent that no cause of
The next division of the building ordinance requires that “the contractor for the iron or steel work of buildings in course of construction, or the owners of such buildings, shall thoroughly plank over the entire tier of iron or steel beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such buildings, or such spaces as may be designated by the plans and specifications for stairways and elevator-shafts.” It is obvious that the duty imposed by this division of the ordinance is thereby placed upon either the contractor for the iron or steel work or upon the owner, and not upon both contractor and owner. This is the only reasonable construction we can give to this portion of the building ordinance, as otherwise the owner, in the effort to protect himself against claims for damages which might be urged against him on account of injuries to employees of the contractor, as licensees of the owner, brought about by the failure of the contractor to properly plank over or cover the entire tier of iron or steel beams on which at the time the structural iron or steel work was being erected, might feel compelled to assert his control over the steel structural work as it progressed, and perhaps to even take possession thereof at different times long enough to pl¿ce in position the necessary planking or covering, and possibilities of conflict and friction between the owner and contractor would be greatly and unreasonably multiplied. The only fair construction to be placed upon this division of the ordinance is that it requires that where the steel work is contracted for, then the contractor must plank over the steel or iron beams on which the structural iron or steel work is being erected; but where the owner himself is doing the structural steel work, he of course must do the necessary planking.
The last division of the building ordinance provides that “If elevating machines or hoisting apparatus are used within a building in course of construction, for the purpose of lifting material to be
The petition alleges that the deceased was knocked backwards by a falling plank and fell through an unplanked opening in the floor on which he was then working, down through, several successive floors, and was killed at the bottom. The provision of the building ordinance which requires that the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over provides also that “such spaces as may be reasonably required for the proper construction of such iron or steel work and for the raising or lowering of materials to be used in the construction of such buildings, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts,” may be left open. It does not appear from the plaintiff’s petition whether the opening, two or three feet wide, through which the plaintiff’s husband fell, was such an opening as is authorized under this provision of the ordinance; and therefore, so far as the ordinance is concerned, it does not follow that the existence of the opening referred to in the petition was per se negligence on the part of either the contractor or the owner; for, without some further allegations, it must be assumed that the opening was one of the permitted openings, and then the question remaining would be whether the fact that the contractor or owner (according to who was in charge of the steel construction) was negligent in leaving the opening in the floor, irrespective of the building ordinance, and, if negligent in this respect, whether the defect was so obvious as to preclude a recovery on account of its existence.