Sxjtton, C. J.
The plaintiff alleges that he was employed by the defendant as a'Servant to repair a gutter extending under the edge of the roof which runs around the third story of the defendant’s dwelling, said roof being 100 feet in length and 25 feet in width, flat and covered with tin. Said roof had a wooden banister running around it, consisting of a top piece, a bottom piece, and wooden pieces 1% inches square and 2y2 feet long between or connecting the top and bottom pieces of the banister. A portion of the flat tin roof extended approximately 20 inches beyond said banister; that is, the ledge around the roof was about 20 inches wide, and then the gutter extended 6 to 8 inches beyond the edge of the roof. The bottom piece or rail of the banister was about 1% inches thick and 2% inches wide, and was 8 inches above the roof. The banister was painted with a heavy, thick coat of white paint, and none of the wood was visible, but the banister appeared to be firm, sound, and strong. It is alleged that, in order for the plaintiff to work on the 20-inch ledge of the roof extending beyond the banister, it was necessary for him to hold onto the bottom rail of the banister with his left hand while repairing the gutter with his right hand, and that, while doing so, the portion of the rail that he was holding broke, causing him to lose his balance and to fall from the roof; that the rail of the banister to which he was holding was rotten and disintegrated on the inside, but this was concealed and could not be seen, as it was covered with a heavy coat of paint. It is alleged in paragraph 19 that the defendant knew, or by the exercise of ordinary care should have known, that said wooden railing had been there for many years, the exact number being unknown to the plaintiff but well known to the defendant, who well knew or should have known that said wood was rotten and defective, had disintegrated, and had been covered over with a heavy coating of white lead paint, said paint having been placed on said railings at the direction of the defendant at a time unknown to the plaintiff but well known to the defendant.
The plaintiff alleges that he was the servant of -the defendant in repairing the gutter and was being paid on an hourly basis. [853]*853While it is true that the master must furnish his employee a safe place to work, it is also true that “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.” Code, § 66-303. It is not alleged that the defendant had the building constructed, or that he had actual knowledge of the alleged defective railing on the banister, but the plaintiff bases his suit on the theoiy that it was the duty of the defendant to make an inspection of the banister before the plaintiff went upon the roof and to warn him of any. defects therein, although it is alleged that the banister appeared to be sound, firm, and strong. In the absence of actual knowledge on the part of the defendant owner of any defect ,in the banister, and where it appeared to be safe and sound, how could it properly be said that there was any duty on him to inspect it, when he had no reason to think that an inspection was necessary? Ordinary diligence to discover defects is all that is required of an owner to an invitee, even. Cuthbert v. Schofield, 35 Ga. App. 443 (133 S. E. 303). If the banister appeared safe to the plaintiff, a workman, who was on the roof holding onto it, it no doubt would have appeared safe to the defendant also, despite the conclusion of the plaintiff that the existence of a defect could have been ascertained by the defendant by an inspection. “The alternative allegation that the defendants knew of a defect or could have ascertained the existence of a defect by an inspection, when construed most strongly against the pleader, as must be done on demurrer, shows no actual knowledge of any defect. Where the owner or occupier of premises is without actual knowledge of the existence of a defect, and there is nothing in the appearance or character of the premises or some instrumentality on the premises which would indicate the possible or probable existence of any defects, there is no reason to think an inspection necessary, and ordinary diligence would not require an inspection of the premises or an instrumentality upon the premises before permitting an invitee to make use of the same.” McCarthy v. Hiers, 81 Ga. App. 365, 367 (59 S. E. 2d, 22). Also see Williamson v. Kidd, 65 Ga. App. 285 (15 S. E. 2d, 801); Southern Bell Telephone &c. Co. v. Starnes, 122 Ga. 602 (50 S. E. 343).
While it is alleged that it was necessary for the plaintiff to [854]*854hold onto the banister in repairing the gutter, still the petition shows that there was a ledge at least 20 inches wide for him to stand on while doing that work. Of course, if the banister was put there for ornament and symmetry, to give the building a balanced effect, and was not put there as a brace or to hold onto, for instance, while repairing the gutter, the owner would not be responsible for injuries occasioned by such foreign use, unless he had actual knowledge that the banister was defective and also knew or should have anticipated that it would be used to hold onto while the gutter was being repaired. “Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose and also knew or should have anticipated that it would be diverted to the foreign use.” Culbreath v. M. Kutz Co., 37 Ga. App. 425, 430 (140 S. E. 419). In that case a window washer was holding onto a window frame, which gave way while he was washing the window, and it was held, as a matter of law, that he could not recover. Also see Hornsby v. Haverty Furniture Co., 85 Ga. App. 425, 431 (69 S. E. 2d, 630). In Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 1032 (48 S. E. 438), a workman caught hold oí a brace to support himself and fell, the brace not being intended to be used for that purpose. It was there said: “The master is responsible for the consequences of his negligence. But he is not an insurer; nor is he liable absolutely and at all events for every injury which is sustained by his employee. The master is not bound to exercise that extraordinary diligence which necessarily would be demanded if he were obliged to make every instrumentality safe for any and every use to which it might suddenly and unexpectedly be applied.” And at page 1034 it was said: “Similar rulings have been made in cases almost identical with that at bar; for example, where a cornice fell when subjected to the unexpected use of supporting painters; or a window mullion fell when an employee rested thereon for the purpose of putting in a pane of glass; or where one grasped a slat not intended as a handhold; or leaned against a lath intended to steady the supports of a scaffold; . . or lost his balance in grasping a wooden ‘horse’ used in hauling up buckets;” etc.
[855]*855In Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (116 S. E.
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Sxjtton, C. J.
The plaintiff alleges that he was employed by the defendant as a'Servant to repair a gutter extending under the edge of the roof which runs around the third story of the defendant’s dwelling, said roof being 100 feet in length and 25 feet in width, flat and covered with tin. Said roof had a wooden banister running around it, consisting of a top piece, a bottom piece, and wooden pieces 1% inches square and 2y2 feet long between or connecting the top and bottom pieces of the banister. A portion of the flat tin roof extended approximately 20 inches beyond said banister; that is, the ledge around the roof was about 20 inches wide, and then the gutter extended 6 to 8 inches beyond the edge of the roof. The bottom piece or rail of the banister was about 1% inches thick and 2% inches wide, and was 8 inches above the roof. The banister was painted with a heavy, thick coat of white paint, and none of the wood was visible, but the banister appeared to be firm, sound, and strong. It is alleged that, in order for the plaintiff to work on the 20-inch ledge of the roof extending beyond the banister, it was necessary for him to hold onto the bottom rail of the banister with his left hand while repairing the gutter with his right hand, and that, while doing so, the portion of the rail that he was holding broke, causing him to lose his balance and to fall from the roof; that the rail of the banister to which he was holding was rotten and disintegrated on the inside, but this was concealed and could not be seen, as it was covered with a heavy coat of paint. It is alleged in paragraph 19 that the defendant knew, or by the exercise of ordinary care should have known, that said wooden railing had been there for many years, the exact number being unknown to the plaintiff but well known to the defendant, who well knew or should have known that said wood was rotten and defective, had disintegrated, and had been covered over with a heavy coating of white lead paint, said paint having been placed on said railings at the direction of the defendant at a time unknown to the plaintiff but well known to the defendant.
The plaintiff alleges that he was the servant of -the defendant in repairing the gutter and was being paid on an hourly basis. [853]*853While it is true that the master must furnish his employee a safe place to work, it is also true that “A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself.” Code, § 66-303. It is not alleged that the defendant had the building constructed, or that he had actual knowledge of the alleged defective railing on the banister, but the plaintiff bases his suit on the theoiy that it was the duty of the defendant to make an inspection of the banister before the plaintiff went upon the roof and to warn him of any. defects therein, although it is alleged that the banister appeared to be sound, firm, and strong. In the absence of actual knowledge on the part of the defendant owner of any defect ,in the banister, and where it appeared to be safe and sound, how could it properly be said that there was any duty on him to inspect it, when he had no reason to think that an inspection was necessary? Ordinary diligence to discover defects is all that is required of an owner to an invitee, even. Cuthbert v. Schofield, 35 Ga. App. 443 (133 S. E. 303). If the banister appeared safe to the plaintiff, a workman, who was on the roof holding onto it, it no doubt would have appeared safe to the defendant also, despite the conclusion of the plaintiff that the existence of a defect could have been ascertained by the defendant by an inspection. “The alternative allegation that the defendants knew of a defect or could have ascertained the existence of a defect by an inspection, when construed most strongly against the pleader, as must be done on demurrer, shows no actual knowledge of any defect. Where the owner or occupier of premises is without actual knowledge of the existence of a defect, and there is nothing in the appearance or character of the premises or some instrumentality on the premises which would indicate the possible or probable existence of any defects, there is no reason to think an inspection necessary, and ordinary diligence would not require an inspection of the premises or an instrumentality upon the premises before permitting an invitee to make use of the same.” McCarthy v. Hiers, 81 Ga. App. 365, 367 (59 S. E. 2d, 22). Also see Williamson v. Kidd, 65 Ga. App. 285 (15 S. E. 2d, 801); Southern Bell Telephone &c. Co. v. Starnes, 122 Ga. 602 (50 S. E. 343).
While it is alleged that it was necessary for the plaintiff to [854]*854hold onto the banister in repairing the gutter, still the petition shows that there was a ledge at least 20 inches wide for him to stand on while doing that work. Of course, if the banister was put there for ornament and symmetry, to give the building a balanced effect, and was not put there as a brace or to hold onto, for instance, while repairing the gutter, the owner would not be responsible for injuries occasioned by such foreign use, unless he had actual knowledge that the banister was defective and also knew or should have anticipated that it would be used to hold onto while the gutter was being repaired. “Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose and also knew or should have anticipated that it would be diverted to the foreign use.” Culbreath v. M. Kutz Co., 37 Ga. App. 425, 430 (140 S. E. 419). In that case a window washer was holding onto a window frame, which gave way while he was washing the window, and it was held, as a matter of law, that he could not recover. Also see Hornsby v. Haverty Furniture Co., 85 Ga. App. 425, 431 (69 S. E. 2d, 630). In Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 1032 (48 S. E. 438), a workman caught hold oí a brace to support himself and fell, the brace not being intended to be used for that purpose. It was there said: “The master is responsible for the consequences of his negligence. But he is not an insurer; nor is he liable absolutely and at all events for every injury which is sustained by his employee. The master is not bound to exercise that extraordinary diligence which necessarily would be demanded if he were obliged to make every instrumentality safe for any and every use to which it might suddenly and unexpectedly be applied.” And at page 1034 it was said: “Similar rulings have been made in cases almost identical with that at bar; for example, where a cornice fell when subjected to the unexpected use of supporting painters; or a window mullion fell when an employee rested thereon for the purpose of putting in a pane of glass; or where one grasped a slat not intended as a handhold; or leaned against a lath intended to steady the supports of a scaffold; . . or lost his balance in grasping a wooden ‘horse’ used in hauling up buckets;” etc.
[855]*855In Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (116 S. E. 57), cited and relied upon by the plaintiff in this case, the instrumentality involved was an “ammonia shell brine cooler,” in which ammonia gas was placed under pressure, which cooler had been in use for a long time and was worn and leaking; and, obviously, it was an instrumentality that required frequent inspections in the exercise of ordinary care. The Pece case, supra, was written by Judge Bell, who later wrote the opinion in the case of Culbreath v. M. Kutz Co., supra, which, under its facts, is more like the present case than is the Pece case; and it was held in the Culbreath case, as a matter of law, that the plaintiff was not entitled to recover.
Under the allegations as set out in the present petition, we are of the opinion that the defendant was not required to make an inspection of the banister before allowing the plaintiff to go upon the roof to repair the gutter, and that the petition fails to set out a cause of action against the defendant.
There being a dissent, this case was considered by the whole court.
Judgment reversed.
Gardner, P. J., Felton, Townsend, and Carlisle, JJ., concur. Worrill, J., dissents.