Threlkeld v. Anthony

Bell, J. Threlkeld brought .suit against Anthony to recover for personal injuries which he sustained when he fell from a scaffold on which he was standing while working as a carpenter on a building, the property of the. defendant. The plaintiff fell, because of the breaking of a plank in the scaffold on which he was standing. At the conclusion of the evidence’ on the trial of the case, the court directed a verdict in favor of the defendant, and to this ruling the plaintiff excepted. The defendant pleaded several defenses, one being that the house .was being erected by an independent contractor, one Rosser, for whom the plaintiff was working. Irrespective of whether, as to this defense or as to some others, the evidence may have presented issues for the jury, .we think that under the evidence the plaintiff, as a matter of law, could not recover, because it conclusively appears that he had equal means with his alleged master of knowing the defect or danger, if any, which caused his injury. The following facts are either as stated by the plaintiff or as shown by the undisputed evidence : ' The scaffold was built by the plaintiff’s fellow servant. Shortly afterward the plaintiff mounted it, and just as he was beginning work from his position upon it, the plank broke and he fell. The fellow servant who built the scaffold had told the plaintifE that it was “perfectly all right.” The plaintiff did not see anything wrong with the scaffold on which he was standing. None of the other scaffolds had broken with him. The plank which broke “looked to be a good two by four. You could not tell anything from the top of it, and there was not but about eight feet between the brackets.” Both Anthony, the owner, and [228] Rosser, who the defendant alleged was an independent contractor, but who the plaintiff contended was the defendant’s agent, were absent at the time the scaffold was being build and until thé plaintiff had sustained his injury. For, so far as appears from the evidence, was any other person present during this time except the plaintiff and his fellow servant who had built the scaffold. The above embraces all the evidence bearing upon the question of negligence or upon the opportunities of the' plaintiff and the defendant to know of the condition which resulted in the plaintiff’s injury. Now, assuming that the evidence is sufficient to show a defect of some kind in the plank which broke with the plaintiff, no other inference is possible under the evidence than that the plaintiff had equal means with the defendant, his alleged master, of knowing of the defect. Where this is true the servant is not entitled to recover for the alleged negligence of his master. The court, under the record, did not err in directing the verdict in favor of the defendant. Civil Code (1910), § 3131; Callahan v. Atlantic Ice Co., 33 Ga. App. 330 (126 S. E. 278); Riverside Mills v. Brooks, 6 Ga. App. 67 (64 S. E. 282); Daniel v. Forsyth, 106 Ga. 568 (32 S. E. 621). Judgment affirmed on main hill of exceptions; cross-hill dismissed. Jenlcins, P. J., and Stephens, J., concur.