Opinion
38962.
DECIDED SEPTEMBER 12, 1961.
Action for damages. Fulton Superior Court. Before Judge Alverson.
Lokey Bowden, Hamilton Lokey, Glenn Frick, for plaintiff in error.
Calhoun Calhoun, Walter W. Calhoun, Clarence H. Calhoun, Jr., contra.
1, 2. Where an employee of a subcontractor knows of a dangerous condition in the floor of an unfinished building in which such employee is working, the proximate cause of injury to the employee because of the dangerous condition is his own negligence and not that of the general contractor.
3. Where the employee was hurt when a tall scaffold on wheels on which he was working rolled into the hole or depression in the unfinished concrete floor, in the absence of an allegation that the slant or incline in the floor was the proximate cause of the plaintiff's injuries, the petition and separate allegations will be construed to mean that the proximate cause of the rolling of the scaffold was one other than the negligence of the defendant.
DECIDED SEPTEMBER 12, 1961.
C. H. Benefield sued McDonough Construction Co. to recover damages for personal injuries. The petition as amended alleged in substance: At all times mentioned therein, the defendant was in possession of, was occupying, and was engaged in the construction of a repair shop and hangar located at the Atlanta Municipal Airport, in Clayton County, Georgia, and intended for the use and occupancy of Delta Air Lines, said repair shop and hangar being a large building about 200 feet square, with a concrete floor varying in thickness from approximately 6 to 12 inches. The defendant was the general contractor engaged in the construction and erection of the repair shop and hangar, and as such he subcontracted with Mechanical Contractors Engineers, Inc., for the installation of air conditioning and steam lines therein, the provisions of this contract being well known to the defendant, but unknown for the most part to the petitioner. On November 9, 1959, plaintiff was employed by Mechanical Contractors Engineers, Inc., and pursuant to his duties as an air conditioning and steam fitter he was working as an invitee on and to the premises occupied by the defendant. These duties required his climbing up on rolling, portable, metal frame scaffolds approximately 30 feet high and 7 feet square, furnished by his employer and others in the premises occupied by the defendant. These scaffolds were mounted on 4 hard rubber casters or wheels of approximately 6 inches in diameter, one on each corner of the base. At approximately 11 a. m. on said date, the petitioner, in pursuance of his duties, placed one of said scaffolds about 10 or 12 inches from the west wall, on which he was working, and about 20 — 24 inches south of a cut or depression in the floor of said hangar near the west wall, measuring about 8 or 9 feet wide by 11 or 12 feet long by 6 inches deep, into which no concrete had been placed. At the point where the petitioner placed the scaffold's wheels, the concrete floor appeared to him to be completely level and flat. As he reached the top of the 30 foot scaffold, the wheels rolled toward the cut or depression in the floor and two wheels rolled into it, causing the scaffold to become unbalanced and fall, throwing the petitioner off onto the floor. He landed on his feet, then on his left forearm, wrist and elbow. The depression in the floor had no guard rails or obstructions to prevent the scaffold from rolling into it. The concrete surface of the floor was not flat and level, as it appeared to the petitioner, but was pitched or slanted, with an incline from the rear of the hangar to the front, a distance of about 200 feet, of about 10 1/2 inches. Neither defendant nor its agents warned or advised the petitioner of the pitch of the floor, although they knew that the petitioner and other workmen thereabouts were using such scaffolds in this area. Defendant knew, or in the exercise of ordinary care should have known, that the inclined floor would cause such scaffolds to roll, and petitioner did not know, nor could he have discovered in the exercise of ordinary care, that the floor was inclined so as to cause the scaffold to roll. "23. Petitioner shows that the defendant was negligent in the following particulars: a. In failing to place guard rails around the cut or depression in the concrete floor of the said repair shop and hangar in order to prevent petitioner's scaffold from rolling into said cut or depression in said floor. b. In failing to place a cover over said cut or depression in the concrete floor of said hangar and repair shop in order to prevent the wheels of petitioner's scaffold from rolling into said cut or depression. c. In failing to advise or warn petitioner that the concrete floor of said repair shop and hangar was not flat and level as it appeared to be, but on the contrary, had a pitch, slant and incline thereto from the rear of said hangar to the front of approximately ten and one-half (10 1/2) inches. d. In failing to warn petitioner that the slant, incline and pitch of the floor of said repair shop and hangar would cause the wheels of his scaffold to roll or otherwise be propelled toward the front of said hangar and toward the cut or depression which defendant had caused to be made in the concrete floor of said hangar when defendant knew, or should have known, that the floor of said hangar was not level and flat as it appeared to be and would cause the wheels of petitioner's scaffold to roll toward and into said cut or depression. e. In permitting and allowing invitees, including petitioner, to use rolling scaffolds such as that used by petitioner on the date aforesaid on the slanted and pitched floor of said hangar without cautioning such invitees, including petitioner, that the floor of the hangar was slanted from the rear toward the front thereof and that the said pitch or slant would cause said scaffolds to roll along said floor toward the front of said repair shop or hangar. f. In failing to warn and caution invitees, including petitioner, that portable rolling scaffolds, such as were being used by invitees, including petitioner, would roll from the rear of the hangar into said cut or depression of the floor thereof and cause the same to fall and injure such invitees, including petitioner. g. In directing and proximately causing the injuries to petitioner's feet and left arm, as described in the petition."
This appeal involves the exception of the defendant to the overruling of the general demurrer to the petition and the overruling of the special demurrer to each of the subparagraphs of paragraph 23 of the petition, the demurrer to each subparagraph being that it failed to disclose the violation of any legal duty owed the plaintiff by the defendant.
1. The court erred in overruling the special demurrer to subparagraph (a) of paragraph 23 of the petition. The petition shows that all work on the hangar had not been completed and does not show that the plaintiff did not know of the unfinished floor. It would seem that the defendant would have met the requirement of ordinary care as to sub-contractors on the premises by giving some kind of notice that there was an unfinished section in the concrete floor. The defendant would not be required to put a guard around the incomplete section, of the presence of which the plaintiff presumably knew, to prevent heavy machinery or vehicles from running into it. Such a requirement would entail a larger expense than the utility of such a precaution would justify, especially as to workmen on the premises.
2. The court erred in overruling the special demurrer to subparagraph (b) of paragraph 23 of the petition for the reason that as stated in the foregoing division of this opinion the defendant would have met the requirements of ordinary care as to workmen on the premises by giving notice of the incomplete section of the floor. Since under a proper construction of the petition against the pleader the plaintiff had notice of the incompleted section of the floor, the defendant was under no duty to cover the incomplete section to protect a workman with notice of the danger.
3. The court erred in overruling the general demurrer to the petition and the special demurrers to subparagraphs (c), (d), (e) and (f) of paragraph 23 of the petition for the reason that it is nowhere alleged in the petition that the slant or incline in the floor was the proximate cause or a contributing proximate cause of the rolling of the scaffold. In the absence of this essential allegation the petition is construed as alleging that the cause of the scaffold's rolling was one with which the defendant is not chargeable. George v. Continental Wrecking Corp., 101 Ga. App. 538, 541 ( 114 S.E.2d 383). The court erred in overruling the special demurrer to subparagraph "g" of paragraph 23 of the petition because this specification of negligence is too general to put the defendant on notice of the negligence sought to be alleged.
The court erred in overruling the general demurrer and the special demurrers to the subparagraphs of paragraph 23 of the petition.
Judgment reversed. Bell and Hall, JJ., concur.