46 Ga. App. 364 | Ga. Ct. App. | 1933
Mrs. Sallie Queen, the mother of George Queen, brought suit against the Patent Scaffolding Company, making this case in her petition:
On the trial the plaintiff proved substantially the case as laid, except that the evidence tended to show that the decedent completely lost his balance and turned to his right, which was towards the middle of the platform, and caught hold of the guard-rail with both hands, when it split and he fell and was killed. The evidence did not show that the guard-rail was covered with a heavy coat of paint, but did show that there was paint on the guard-rail, which made it necessary to closely inspect the rail to discover the fact that the same was cross-grained in a certain place. The evidence further showed that the brother of the deceased did not examine the guard-rail and that it was his opinion that the decedent did not, and that it was not customary for them to do so. The evidence further showed that had the guard-rail been constructed of straight-grained wood, it would have been three or four times as strong as it was, and that cross-grained wood would split easily. The evidence showed that the guard-rail split at the place where it was cross-grained. At the conclusion of the evidence the defendant moved to dismiss the case upon the ground that no recovery was authorized under the pleadings and the' evidence. The motion was sustained and the case dismissed. To this judgment the plaintiff excepted.
At the outset the defendant contends that the decedent had two ways of doing the work, during the performance of which he was killed, the one by building a scaffold off the roof underneath
The defendant contends that if any negligence upon its part was shown, such negligence could have been avoided by the decedent by the exercise of ordinary care. The defendant asserts that even if it was negligent in using a guard-rail on this swinging scaffold that was cross-grained (but it contends that it was not negligent in so using a guard-rail), the undisputed evidence discloses that this condition was patent and easily discoverable by the decedent. While the evidence showed that the fact that the guard-rail timber had a cross-grained place in it, which rendered it weak and defective, and that this condition was apparent from an examination of the same, the evidence also tended to show that the rail was painted and that it took a close scrutiny or inspection to ascertain this. “A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust.” Civil Code (1910), § 3467; Baugh v. MacDaniel, 42 Ga. 641, 655. A bailment partakes of the nature of a contract of hiring. Cabaniss v. Ponder, 65 Ga. 134, 138. A contract of hiring is a contract by which one person grants to another the enjoyment of a thing during a certain time for a stipulated compensation. Civil Code (1910), § 3476. The obligations of the bailor in such a bailment are, among others, to keep the thing bailed in suitable order and repair for the purposes of the bailment, and a warranty that the thing bailed is free from any secret fault rendering it unfitted for the purposes for which it is hired. Civil Code (1910), § 3479. It has been held that while it is the duty of the bailor, under this section, to warrant against latent defects, much more is it the duty of the bailor to see that the bailed article is free from patent defects which render it unfit and unsuitable for the purposes for which it is hired. Parker v. Loving, supra. If the bailee knows of the defect or in the exercise of ordinary care ought to discover it, yet he uses the thing and injury results on ac
One undertaking to furnish appliances for the use of others assumes a duty to furnish proper and safe appliances, and he may be liable to one lawfully using such' machinery or appliance who is injured because of his failure to exercise proper diligence in this regard, even where the person using the appliance does not receive it directly from the person furnishing it, as where it is furnished to his employer. Savannah &c. Ry. Co. v. Booth, supra; 45 C. J. 849. One who supplies an appliance for such use by others that it is obvious to him that any defect will be likely to result in injury to those using it is liable to any person who, using the appliance properly for the purpose for which it is supplied, and without notice or warning of its defective condition, is injured thereby. This principle of law has been applied to defective scaffolds for workmen to work upon. Devlin v. Smith, 89 N. Y. 470 (42 Am. R. 311) ; Coughtry v. Globe Woolen Co., 56 N. Y. 124 (15 Am. R. 387); 45 C. J. 886. The above principle is applicable even though there is no contractual relation between the person furnishing the appliance and the person injured by reason of its defective condition. Torgesen v. Schultz, 192 N. Y. 156 (84 N. E. 956, 127 Am. St. R. 894, 18 L. R. A. (N. S.) 726); McCaffrey v. Morsberg &c. Mfg. Co., 23 R. I. 381 (50 Atl. 651, 91 Am. St. R. 637, 55 L. R. A. 822); Parry v. Smith, 4 C. P. D. 325. The maker or vendor of an article harmless in kind, but dangerous through defect, is under a duty to make the article carefully where its nature is such that it is reasonably certain to place life and limb in peril when negligently made; and where there is knowledge that the article will be so used by persons other than the purchaser, such maker or vendor is liable for an injury to a person resulting from a failure to perform this duty. 45 C. J. 891. A manufacturer of an article which is not inherently dangerous, but which is rendered dangerous by a defect therein, is liable for an injury to a third person arising from the defect, where he had knowledge of the defect (cases cited in note 50), and failed to give notice or warning thereof to the purchaser (cases cited in note 52), 45 C. J. 892, § 331. Conversely the
It is true that the decedent was under the duty to act as a conscious and responsible human being must act, as the situation and ordinary care require; but we do not think that the evidence in this case justifies a holding, as a matter of law, that the decedent utterly failed so to act. He was working upon an appliance furnished him by his employer, which was rented to the employer by the defendant, and which the defendant warranted to be safe and suitable for uses intended.
We are of the opinion that under the facts of this case the decedent had a right to rely, at least to some extent, upon the statutory duty of the defendant to furnish a safe appliance suitable for the uses intended, in going upon this scaffold to perform the work of his employer.
It follows that we are of the opinion that the failure of the decedent to closely examine the piece of timber furnished by the defendant as the guard-rail of the scaffold for a place therein where the wood was cross-grained, would not, as a matter of law, be such a want of ordinary care on his part as to preclude a recovery by his mother for his death resulting from the alleged defective condition of the guard-rail, but that it was a question for a jury to determine under all the facts and circumstances of this case and under proper instructions from the court.
The defendant contends that the death of the decedent was caused by his working on the end of the scaffold, and that the breaking of the guard-rail was not the proximate cause of his injury. Although the defendant may be negligent in the performance or omission of a duty owed to the decedent, no liability would attach to the defendant unless such negligence was the proximate cause of the injury to the decedent. Perry v. Central R. Co., 66 Ga. 746; Southern R. Co. v. Pair, 32 Ga. App. 378 (123 S. E. 142). In order to establish the proximate cause it is necessary that there be a causal connection between the negligent act and the injury. General Fire Extinguisher Co. v. Daniel, 25 Ga. App. 282 (103 S. E. 257). The negligent act or omission must have been such that without it the injury would not have happened. Southern Ry. Co. v. Daughdrill, 11 Ga. App. 603 (75 S. E. 925). The injury must have been the natural and probable consequence of the negligent act. Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809
“One who knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.” City of Columbus v. Griggs, 113 Ga. 597 (38 S. E. 953, 84 Am. St. R. 257). It can not be said as a matter of law that the fact that the decedent used the scaffold furnished by the defendant to his employer constituted the taking of a risk of physical injury, the danger of which' was so obvious that it amounted to a lack of ordinary care and diligence for his own safety; nor can it be said as a matter of law that the act of the decedent in going at or near the end of the scaffold to do some work, when there was another on the scaffold to prevent it from tilting and to balance it, constituted such a lack of ordinary care and voluntary risk as would in and of itself amount to a failure to use ordinary care.
If the decedent had become overbalanced by a movement of the scaffold, four or five inches, which he caused by standing at or near .the end of the scaffold and leaning over towards his left, and in an effort to right himself caught the guard-rail and put his entire weight upon it, a jury could find from the evidence in this case that he might not have fallen to the roof below had it not been for the splitting of the guard-rail, and that he caught the guard-rail after being overbalanced and was in the act of righting himself when the defective guard-rail put there for his protection by the defendant split off. A jury would have been authorized to find that a guard-rail constructed of straight-grained material might have been strong enough to prevent the decedent from fall
Furthermore, if the decedent could not have avoided the injury caused by the defendant’s negligence by the exercise of ordinary care, the defendant would not be relieved of its liability because the negligence of the decedent contributed in some way to the injury sustained. Civil Code (1910), § 4426; Atlanta, Knoxville &c. Ry. Co. v. Gardner, 122 Ga. 82 (49 S. E. 818). It is not sufficient to relieve the defendant of liability that the negligence of the decedent contributed to cause the injury complained of, unless such negligence of the decedent amounted to a proximate cause of the injury. Davis v. Savannah Lumber Co., 11 Ga. App. 610 (75 S. E. 986); Georgia Ry. &c. Co. v. Simms, 33 Ga. App. 535 (2) (126 S. E. 850). Questions as to diligence and negligence, under section 4426 of the Civil Code, including contributory negligence, are questions peculiarly for the jury, except in plain cases. Columbus Power Co. v. Puckett, 24 Ga. App. 390 (100 S. E. 800). So we reach the conclusion that whether or not the decedent was guilty of failure to use ordinary care in working at or near the end of the scaffold, whether or not his negligence in that respect was the proximate cause of his injury, or whether or not the alleged negligence of the defendant in failing to provide a suitable guard-rail for the scaffold was the proximate cause of the injury, were all questions for determination by a jury under proper instructions from the court.
The defendant further contends that the guard-rail was subjected by the decedent to a use not intended by its being placed on the scaffold. The petition alleges that the guard-rail was for a
The defendant UTges that the evidence did not show that the plaintiff in this case, the mother of the decedent, was dependent upon him for support, but that the voluntary contributions made by him to her were for such luxuries as she might desire to purchase. We can not agree with this contention of the defendant. The evidence showed that the plaintiff, her husband, who was sixty-three years old and did not work regularly on account of ill health, and their two unmarried sons, one of whom was the decedent, lived together; that the decedent gave the plaintiff about $50 monthly, in addition to paying board, which money was for her own comfort and for things that she might need; and that the plaintiff had been sick a long time, and the decedent had helped wait upon her. “Members of the same household who live by their common labor and its proceeds have a mutual dependence one upon another. Certainly so unless it be affirmatively shown that a particular member consumes as much, or more, of the common stock than he contributes to it. Even that would not be a conclusive test, for the services of a child to a mother or of a mother to a child may well be reckoned as- contributing substantially to the support of the recipient far beyond any money value which the services may have, and the chief element of dependence may be in respect to personal service of this nature. . . In the case of laboring people some regard must be had to the probability of future dependence of an older member of the family upon younger ones.” Augusta Ry. Co. v. Glover, 92 Ga. 132 (18 S. E. 406). Partial dependence upon the child, accompanied by contributions from him, is all that is necessary for a mother to be entitled to recover for the negligent homicide of her child. Central of Ga. Ry.
While testimony as to what one thinks Avould have been the result of an occurrence had it happened in a particular way is not competent evidence, being merely conjectural and without probative value, evidence as to a custom and practice of persons using a swinging scaffold to go beyond the ratchets towards the end thereof to work, when another is on the scaffold with such a person, is admissible to show whether or not the decedent was guilty of lack of ordinary care in working near or at the end of the scaffold in this case, and it was error for the court to exclude the same when offered by the plaintiff. Standard Oil Co. v. Reagan, 15 Ga. App. 572 (84 S. E. 69); Arrington v. Fleming, 117 Ga. 449 (43 S. E. 691, 97 Am. St. R. 169). The testimony of the decedent’s brother, who had many years experience with swinging scaffolds, that a guard-rail made of cross-grained wood was not a suitable guardrail, was competent and admissible.
So under all the evidence in this case, and under the evidence improperly excluded by the court, we are of the opinion that it was a question for the jury to determine whether or not the defendant was negligent in furnishing the swinging scaffold to the employer of the decedent, with a cross-grained guard-rail, whether or not the death of the decedent was caused by his own lack of'ordinary care, and whether even if the decedent was negligent in working upon the end of the scaffold, whether or not his working there or whether or not the defective condition of the guard-rail constituted the proximate cause of his death. If under any view of the evidence in this case, or legitimate inferences therefrom, the defendant would be liable for the death of the decedent, it was a question for the jury to pass upon, and we think that the court erred in dismissing the case.
Judgment reversed.