Opinion
45419.
SUBMITTED JUNE 1, 1970.
DECIDED NOVEMBER 12, 1970. REHEARING DENIED DECEMBER 3, 1970.
Action for damages. DeKalb Superior Court. Before Judge Morgan.
Shoob, McLain Jessee, Gregg Loomis, for appellant.
James H. Weeks, for appellee.
Issues of negligence, including the related issues of assumption of risk and lack of ordinary care for one's own safety, are peculiarly matters for resolution by a jury.
SUBMITTED JUNE 1, 1970 — DECIDED NOVEMBER 12, 1970 — REHEARING DENIED DECEMBER 3, 1970.
William H. Lambdin filed his complaint in DeKalb Superior Court. In substance, the plaintiff alleged that on August 7, 1968, he was employed on a construction job by one of the plumbing subcontractors and that the defendant was also on the job as a frame and trim subcontractor; that, while he was working on the job as a plumber, two of the defendant's employees negligently caused a stack of lumber to fall over on the plaintiff.
The defendant filed an answer and defenses denying its negligence and, among other affirmative allegations, raising the defenses of comparative and contributory negligence and assumption of the risk.
The case came on for trial and the plaintiff testified that: he was a plumber by trade and at the time of the injury which forms the basis of this action was employed by Miller-Wysong, a subcontractor on the job; on the day in question, the plaintiff arrived at the site at about 7:30 a. m.; he did not recall any lumber being stacked on the patio as shown in the photographs because most of his work was "inside for a while," nor did he know when the lumber was placed there; after working a while, the plaintiff took a break and then went back to the building where he had been working to sharpen a chain saw under, or on the side of, the patio on which the lumber was stacked, although he could have done this work anywhere else on the job; plaintiff was aware that the lumber was stacked immediately above him on the elevated patio because he had purchased a soft drink on his break and when he returned to his job put it up on the patio next to the stack of lumber; he had chosen to work in this area rather than one away from the stacked lumber because it was more convenient; suddenly he heard a "popping sound," and his companion, a fellow plumber, said "the lumber's falling" and the lumber fell on him.
On cross examination about a previous statement against interest, the plaintiff testified he did not recall giving a statement to his workmen's compensation carrier that the lumber had been on the patio for several hours before the accident.
Defendant's president was called for cross examination and testified that: he estimated the lumber had been placed in the location in question between 8:30 and 9 on the morning in question and that defendant's employees could not have seen below the patio where plaintiff was working; he did not know what caused the lumber to fall; each piece of lumber weighed about fifty pounds, and about thirty to thirty-five pieces fell; a co-worker had taken a piece of lumber off the stack about ten to fifteen seconds before it fell, walked back to the saw bench and put it down when the lumber fell; he could not tell that the stack was about to fall nor did he know what caused it to fall. On cross examination, he stated: that he had been on the plaintiff's side of the lumber before starting to remove pieces thereof and had seen no one; that his first knowledge of the plaintiff's presence was when he went to pick up the fallen lumber and heard moaning.
On direct examination, the president of the defendant also testified that: his company was to supply labor at the job only, the general contractor furnishing the lumber; it was the general contractor who placed the bundle of lumber on the patio at about 9 that morning; defendant's employees were sawing the lumber inside the building immediately adjacent to the patio with a skill saw that could be heard up to 150 feet away.
Marvin Gene Brooks, an employee of the defendant, testified that: he was working on the stack of lumber and taking lumber off when "they started leaning over and they just fell off" on the side where plaintiff was working; he had broken the band and worked removing the lumber for about thirty minutes before it fell; taking the lumber off the front side (opposite plaintiff) made the stack heavier on the back side and "they just fell off."
At the conclusion of the evidence, the defendant moved for a directed verdict which was denied. After the charge to the jury, the jury returned a verdict for the defendant. The court, on its own motion, granted a new trial. The defendant then moved for a judgment in accordance with its motion for directed verdict, which was denied. The denial was certified as an order requiring an immediate determination by this court and defendant filed its notice of appeal.
1. The appellant contends that the evidence demanded a verdict for it because the plaintiff failed to prove a prima facie case of negligence on its part. With this contention we cannot agree. The evidence disclosed that the defendant's employee had been removing the lumber for about thirty minutes before it fell; that taking the lumber off the front side made the pile heavier on the back side and it fell; that the employee had seen lumber stacked like this fall a good many times when it was taken off one side.
It can not be said as a matter of law that the jury would not have been authorized to find that the defendant's employee was negligent in the method he employed in removing the lumber from the pile. "Questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases." Bussey v. Dawson, 224 Ga. 191, 193 ( 160 S.E.2d 834). See Keebler v. Willard, 86 Ga. App. 884, 887 ( 72 S.E.2d 805); Garrett v. Royal Bros. Co., 225 Ga. 533 ( 170 S.E.2d 294).
2. The appellant argues that the defendant was entitled to a judgment because the plaintiff assumed the risk when he voluntarily placed himself in a position of danger. While the evidence might have authorized a finding for the defendant on this question, under the circumstances of this case the issue of assumption of the risk was for the jury to determine. Thigpen v. Executive Committee, 114 Ga. App. 839, 843 ( 152 S.E.2d 920).
Judgment affirmed. Bell, C. J., and Whitman, J., concur.