Owensby v. Jones
136 S.E.2d 451
Ga. Ct. App.
1964
Check Treatment
Pannell, Judge.

1. “If thеre are dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning with respect thereto. Code § 66-301. It is the duty of the master tо exercise ordinary care to provide and maintain a reasonably safe рlace for his servant to work. Chenall v. Palmer Brick Co., 117 Ga. 106 (43 SE 443). The duty of the master to keep his premises and to conduct his business in such a manner that his servants may perform their duties in safety is but a phase of the broader and more anciently recognized doctrine of the common law, that every person who expressly or impliedly invites another to come upon his premises or to use his instrumentalities is bound to use ordinary care to protect ‍‌​‌‌​​​​‌‌‌​‌‌​‌‌​​‌​‌‌‌​​‌‌​​‌​‌​​‌​‌​‌​‌‌​‌​​​‍the invited person frоm injury while upon his premises. However, a servant assumes the ordinary risks of his employment, and is bоund to exercise his own skill and diligence to protect himself, and in cases of injury it must apрear 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, 118 Ga. 525 (45 SE 429). Upon оne who brings a suit against his master for injuries it is incumbent to show not only negligence on the part оf the master, but due care on his part; and it must appear that the person injured did not know and had not equal means of knowing all that is charged as negligence to the master, аnd by the exercise of ordinary care could not have known thereof. Daniel v. Forsyth, 106 Ga. 568 (32 SE 621); Winship Mach. Co. v. Burger, 110 Ga. 296 (35 SE 120); DeLay v. Southern R. Co., 115 Ga. 934 (42 SE 218); Williams v. Atlantic C. L. R. Co., 18 Ga. App. 117 (89 SE 158); Ludd v. Wilkins, supra.” Holman v. American Auto. Ins. Co., 201 Ga. 454, 459 (39 SE2d 850).

2. The gravamеn of plaintiff’s complaint is that the defendant in supplying a scaffold provided one with a cross member not properly braced or supported or not securely nailed, and thus did not furnish plaintiff with a safe place to work. While a servant is bound to observe oрen and obvious dangers such *399 as would be disclosed by the exercise of ordinary care, he has the right to assume that his master ‍‌​‌‌​​​​‌‌‌​‌‌​‌‌​​‌​‌‌‌​​‌‌​​‌​‌​​‌​‌​‌​‌‌​‌​​​‍has performed the duty of furnishing him with a safe place tо work and is under no obligation to inspect the same in order to discover latent defects not оpen to ordinaiy observation. A danger arising from an unsafe place is not included аmong the risks assumed by the servant. King Mfg. Co. v. Walton, 1 Ga. App. 403 (3) (58 SE 115); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155 (1c) (95 SE 765).

3. Whether the plaintiff had the same opportunity as the defendant of knowing the defects alleged and proved would depend upon the character of such defects, whether they are latent or patent. Where the defeсt is superficially discernible or plainly apparent to the eye, the servant has thе same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not on the servant. In a case of latent dеfects—those which are discoverable by proper inspection—the master is necessarily held to a higher standard of conduct than the servant, since the master owеs to the servant the duty of inspection. Moody v. Hardeman, 44 Ga. App. 676 (3) (162 SE 653) and cases there cited.

4. The condition of the scaffold as to being nailed underneath being discoverable by close inspection only, and the duty of inspection not being within the scope of the work ‍‌​‌‌​​​​‌‌‌​‌‌​‌‌​​‌​‌‌‌​​‌‌​​‌​‌​​‌​‌​‌​‌‌​‌​​​‍for which he was employed, plaintiff had the right to rеst upon the assumption that the master had performed his duty to see that the scaffold was in a safe condition. See Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259 (58 SE 249). It follows, therefore, that the trial court did not err in failing to grаnt the motion of the defendant for a judgment notwithstanding the verdict for the plaintiff.

5. The charges of the court complained of in plaintiff’s motion for new trial, relating to the duty of the рlaintiff to inspect the scaffold, in view of the evidence and the above rulings, were harmful error.

6. A charge on a contention arising from the evidence, ‍‌​‌‌​​​​‌‌‌​‌‌​‌‌​​‌​‌‌‌​​‌‌​​‌​‌​​‌​‌​‌​‌‌​‌​​​‍though not pleadеd, is not reversible error. Bugg v. Carter, 34 Ga. App. 819 (1) (131 SE 297); Waynesboro Planing Mill v. Perkins Mfg. Co., 35 Ga. App. 767 (3) (134 SE 831).

*400 Decided March 5, 1964 Rehearing denied March 19, 1964. Hewlett & Ward, Florence Hewlett Bendy, for plaintiff in error. SamF. Lowe, Jr., Smith, Field, Bing el, Martin ¡& Carr, contra.

7. The striking of pleadings on motion is not a proper ground of a mоtion for a new trial. Bearden v. Lane, 107 Ga. App. 424, 427 (5) (130 SE2d 619).

8. The question of the sufficiency of the preliminary proofs to identify a photograph, or to show* that it is a fair or accurate representation оf the objects which it purports to portray, is a question committed to the discretion of the trial judge. Johnson v. State, 168 Ga. 192, 198 (123 SE 120). There does not appear to be any abuse of discretion in the refusal ‍‌​‌‌​​​​‌‌‌​‌‌​‌‌​​‌​‌‌‌​​‌‌​​‌​‌​​‌​‌​‌​‌‌​‌​​​‍to admit the photograph in evidence in the present case.

9. The other grounds of plaintiff’s motion for new trial, not herein specifically dealt with, are without merit.

The trial judge erred in overruling plaintiff’s motion for new trial for the reason set forth in headnote 5.

Judgment reversed on main bill of exceptions; affirmed on cross bill.

Bell, P. J., and Hall, J., concur.