Benefield v. McDonough Construction Co.

126 S.E.2d 704, 106 Ga. App. 194, 1962 Ga. App. LEXIS 667

• Court: Court of Appeals of Georgia
• Decided: June 15, 1962
• Docket: 39358
• Status: Published

Opinions

Bell, Judge.

The petition alleges that the plaintiff placed a thirty-foot high scaffold mounted on wheels and capable of rolling, on a concrete floor only twenty inches distant from a six-inch cut or depression in the floor. It should have been apparent to the plaintiff that a slight rolling of the scaffold could cause it to enter the depression, tilt, and cause him to fall thirty feet to the concrete floor. It also should have been foreseen by the plaintiff that the mere weight of his body at such a height might create an imbalance sufficient to cause the scaffold to roll for the short distance of twenty inches unless he knew, as a matter of fact, that the floor was perfectly level. The plaintiff could not assume the floor was level nor would a cursory examination protect him, for he should have foreseen, as a matter of common knowledge, that a floor might vary to some degree in its horizontal plane. The exercise of ordinary care would have required him, under all the facts alleged, to have taken precautions sufficient to prevent the scaffold from rolling. The scaffold was under the plaintiff’s control. See generally, Dacus v. Dickinson Trust Co., 65 Ga. App. 872 (16 SE 2d 786, 163 ALR 590 N); Hendricks v. Jones, 28 Ga. App. 335 (111 SE 81), 41 ALR 968 N, 58 ALR2d 1186 N; Ogain v. Imperial Cafe, 25 Ga. App. 415 (103 SE 594); Fricks v. Knox Corp. 84 Ga. App. 5, 10 (65 SE2d 423); Mattox v. Atlanta Enterprises, 91 Ga. App. 847 (87 SE2d 432), 55 ALR2d 911 N.

The petition clearly shows that the building was still under construction. The plaintiff, in the exercise of ordinary care, when he placed this thirty-foot high scaffold twenty inches from a hole of such large dimensions in the incompleted floor was bound, as a matter of law, to have notice of the existence of the depression in the floor. “Since under a proper construction of the petition against the pleader the plaintiff had notice of the in-completed section of the floor, the defendant wa$ under no duty to cover the incomplete section to protect a workman with notice of the danger.” McDonough Const. Co. v. Benefield, 105 Ga. App. 367, 370 (121 SE2d 665). It would be ridiculous to hold that a contractor is negligent in having an unfinished area in an incompleted floor in a building in the process of construction. While there may be particular instances which might make this negligence, none are apparent in the present case. .

Furthermore, we consider it not to be negligence to construct a floor with such a slight variance approximating one inch in twenty feet from complete levelness.

Standing alone, such a gradual slope in the floor did not of itself constitute conduct on the part of the defendant which threatened an unreasonable risk of harm to persons on the premises. Cf. 2 Restatement, Torts, § 282. Without the negligent act of the plaintiff in placing this towering, rolling scaffold within a few inches of the unfinished portion of the floor, no injury would have resulted. Where the injury “could not reasonably have been expected to result therefrom, or would not have resulted therefrom, but from the interposition of some independent unforeseen cause, the defendant’s such antecedent wrongful act or omission, if any, would not be the proximate cause of the injury. . . If the injury could not be reasonably anticipated as the probable result of an act of alleged negligence, such act is either a remote cause or no cause.” Whitaker v. Jones, McDougald, Smith, Pew Co. 69 Ga. App. 711, 715 (26 SE2d 545). Further, if, after a wrongful act, a new cause intervened of itself sufficient to stand as the cause of the injury, the former will be considered too remote. Irwin v. Georgia Power &c. Co., 84 Ga. App. 665 (67 SE2d 151); 4 . Georgia Power Co. v. Kinard, 47 Ga. App. 483 (170 SE 688). Cf. Millirons v. Blue, 48 Ga. App. 483 (173 SE 443).

If we are correct in our view that such a gradual slope in the floor did not involve any foreseeable risk of harm to third persons, the defendant was not negligent. ■ Even if this be an erroneous view, and such conduct is negligence, the neglignt act of the plaintiff was an independent, unforeseen cause, and the sole legally efficient cause of the injuries sustained. The defendant is not required to anticipate or foresee and to provide against that which, according to common experience of mankind, under the circumstances alleged, is unusual and not likely to happen, or is only remotely and slightly probable. “A prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.” Whitaker, supra, p. 715.

While normally questions of diligence and negligence are peculiarly for the jury (Norton v. Georgia R. &c. Co., 28 Ga. App. 167, 110 SE 459; Food Fair Stores v. Pound, 102 Ga. App. 32, 115 SE2d 645), nevertheless, where as here, the answer to the question whether there was negligence is'palpably clear, plain, and indisputable, the court will solve it on demurrer. Georgia Pacific R. Co. v. Richardson, 80 Ga. 727 (7 SE 119); Ford v. S. A. Lynch Corp., 79 Ga. App. 481 (54 SE2d 320); Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680).

The petition before us clearly discloses that plaintiff’s own negligence and not that of the defendant caused his'injury.

The trial court did not err in sustaining the defendant’s demurrer-to the petition as amended.

The plaintiff contends that, since he has amended the petition to allege that the proximate or a contributing proximate cause of the rolling of the scaffold was the slant or incline in the floor, the petition now states a cause of action. In the -prior appearance of this case before this court it was held that in the absence of this essential allegation the petition was considered as alleging that the cause of the scaffold rolling was one with which the defendant was not chargeable. McDonough Const. Co. v. Benefield, 104 Ga. App. 367, 370, supra.

The fact that a petition is held to be fatally defective for lack of one essential allegation is not to be interpreted as meaning that it may not be fatally defective for other reasons even though the essential allegation to which the court pointed in the first case may have been added later by amendment. See Gordon County Broadcasting Co. v. Chitwood, 212 Ga. 21 (1) (90 SE2d 5).

The defendant in error in both the prior and present appearance of the case in this court has earnestly contended that the petition shows that the plaintiff’s exclusive remedy is under the Workmen’s Compensation Act by virtue of Code § 114-112. We do not consider this contention for the simple reason that there is nothing in the petition to show the number of employees employed by any of the employers referred to. It is well settled that there is no presumption that an employer and his employees are under the provisions of the Workmen’s Compensation Act nor that the employer has a sufficient number of employees so that the act will be extended to the employer. See Borochoff v. Fowler, 98 Ga. App. 411 (1) (105 SE2d 764).

As previously stated, this is the second appearance of this case before this court. McDonough Const. Co. v. Benefield, 104 Ga. App. 367, supra.

Counsel for plaintiff, exhibiting commendable diligence, amended his petition before the remittitur in the first case reached the trial court so as to allege what this court there said was a missing essential allegation.

As held in Division 2 here, this prior opinion did not mean that the petition would, by the addition of that essential allegation, state a cause of action. We regret that counsel were misled thereby to the inconvenience and expense of all concerned.

The trial court properly sustained the general demurrer to the petition as amended and dismissed it.

Judgment affirmed.

All the Judges concur, except Felton, C. J., and Nichols, P. J., who dissent.