In the present case the petition alleged facts sufficient to present a jury question as to whether the plaintiff exercised ordinary care for his own safety.
Horace H. Mozley filed a suit against Beers Construction Company for damages. The petition alleged in part that the defendant is a general contractor engaged in the business of constructing buildings and structures of various kinds; that the defendant as such general contractor was, at the time of the occurrences herein set forth, engaged in building the new Piedmont Hospital at 2002 Peachtree Road, N. E., in the City of Atlanta, Fulton County, Georgia; that on or about October 12, 1955, the plaintiff was working as a plumber on the hospital building; that on or about October 12, 1955, the plaintiff was injured and damaged by the negligent acts of the defendant in the sum of $116,590.65; that on said date, the plaintiff was employed by Stephenson Company, Inc., plumbing subcontractors of the defendant general contractor, on the Piedmont Hospital job; that the plaintiff, at the time and place, was engaged in leveling some pipe which he and a helper, one Bill Frazier, were installing along and parallel with the ceiling of the first floor of the hospital building; that the first floor was located about a basement and subbasement in the building; that at, or about 11 a.m. on said date, Bill Frazier, the plaintiff's helper, was on a scaffolding working overhead at leveling the pipe parallel with the ceiling; that the plaintiff was standing on the floor to the rear of the scaffolding; that the plaintiff was directing the movements Of Bill Frazier as he worked, in their effort to level the pipe; that the plaintiff, in order to obtain a better perspective of the site of the work for the purpose of determining whether the pipe was level, walked backward away from the scaffolding several steps to sight the alignment of the pipe Frazier was leveling; that the plaintiff, after he had taken several steps backward, stopped and scanned the site of the job, then walked backward several steps more to get a better view, and again stopped; that he had backed away from the scaffolding 8 or 10 feet before stopping the second time; after stopping and sighting the pipe the second time, he took another step or two backwards; that when he took the step or two backward, he stepped into an open shaft leading to the subbasement of the building; that he was unfamiliar with the site of the job in which he was engaged on the day and did not know that an open shaft leading to the subbasement of the building was located in that area; that he had never worked in that general vicinity of the building until the morning of October 12, 1955, shortly before the occurrences herein set forth; that he was at all times acting with due care for his own safety; that at the time and place he had no reason to suspect that the open shaft was located in that vicinity until he had stepped into it and had fallen as hereinbelow alleged; that the shaft was intended for a stairwell, but no stairs had been built therein from the basement to the first floor; that steps had been built in the shaft from the subbasement to the basement; that there was a distance of approximately thirty feet down the shaft from the first floor to the subbasement of the building; that he fell down the shaft from the first floor to the concrete floor of the subbasement of the building; that when he struck the
concrete floor of the subbasement his left foot struck the bottom step of the stairs leading from the subbasement to the basement and his right foot hit a conduit pipe lying on the subbasement floor; that the shaft on the first floor of the building, at the time and place, had no guardrail, bannisters or other protective devices around it; that the shaft on the first floor of the building, at the time and place, was open, unprotected and unguarded; that there was in existence at the time and place of the occurrences herein set forth an ordinance of the City of Atlanta, passed by the City Council on March 6, 1950, and approved by the Mayor on March 7, 1950, adopting a Building Code, which ordinance is as follows: "Section 1. That the new Building Code of the City of Atlanta, as compiled by the Building Code Committee, appointed by the Mayor, copy of which is attached hereto, is hereby ordained, enacted and adopted as a general ordinance of the City of Atlanta. This includes all of articles numbers I through XXI. Each of the sections of said Code and said articles are ordained, enacted and adopted as fully as though set out in full in this ordinance." That Section 1305 of Article XIII of the said Building Code so adopted is as follows: "Section 1305. Floor openings. All floor openings, unless guarded by permanent enclosures or full height temporary barriers, shall be covered with substantial temporary flooring, or guarded on all sides by substantial railings not less than 3 feet high set at least 2 feet from the edge of the openings, and by toe boards not less than 6 inches high set along the edges of the openings, except for such parts of the openings as are necessarily open for traffic purposes." That the defendant was negligent at the time and place in the following particulars, to wit: (a) in allowing the shaft or opening in the first floor of the building to remain open and unprotected; (b) in failing to place any floor covering on the shaft, or to place any guardrails, handrails, or other protective devices around the opening; (c) in failing to give any warning of the opening or maintain any warning or protective devices around the same; (d) in failing to warn the plaintiff in any manner whatsoever of the existence of the unprotected opening; (e) in failing to cover the opening with temporary flooring, or to guard the same on all sides by railings of any kind or to guard same by toe boards along the edges of the opening, in violation of Section 1305 of Article XIII of the Building Code of the City of Atlanta, as more fully set forth in Paragraph 43 hereinabove.
The defendant filed a general demurrer to the petition, which the judge sustained, and dismissed the petition. To this ruling the plaintiff excepts.
1. The petition shows that: the plaintiff was supervising some plumbing work on the building in question; in order to obtain a better perspective of the site where the work was done he took several steps backwards and stopped to observe the work; then after observing the site he took several more steps backwards to get a better view, and stopped again; he had backed away from the scaffolding 8 or 10 feet before stopping the second time; after stopping and sighting the pipe the second time he took another step or two backward and fell into the unguarded stairwell shaft; the defendant negligently failed to provide a guardrail or cover for the open shaft as required by the building code of Atlanta.
The petition alleged facts sufficient to present a jury question as to whether under the circumstances the plaintiff was negligent in failing to look behind him and whether his negligence amounted to a failure to exercise ordinary care for his own safety.
If it is decided that the plaintiff was negligent, the question then arises as to whether his negligence exceeded that of the defendant and as to whether the plaintiff in the exercise of ordinary care could have avoided the defendant's alleged negligence after it was or should have been discovered.
Except in plain and indisputable cases, the questions as to negligence and contributory negligence are for the jury, and where the allegations of the petition do not, even when construed most strongly against the pleader, demand a conclusion that the plaintiff's own negligence so preponderated as to preclude recovery, this issue should be left for the jury. Shattles v. Blanch- ard, 87 Ga. App. 15 (2)
(73 S. E. 2d 112); Brown v. Binns, 87 Ga. App. 485
(74 S. E. 2d 370); Fields v. Altman, 90 Ga. App. 168
(82 S. E. 2d 29); Bazemore v. MacDougald Construction Co., 85 Ga. App. 107
(1b) (68 S. E. 2d 163).
In reaching the conclusion, not without difficulty, that the pleadings made an issue as to whether the plaintiff was in the exercise of ordinary care for his own safety and employed the same degree of care to avoid the negligence of the defendant, we have given consideration to the allegation that the provision of the city code having the force of an ordinance required the defendant to keep the open shaft closed, and the plaintiff had a right to rely upon the defendants obeying the mandate of the law.
We have also considered the alleged circumstance that the defendant was necessarily aware that workmen often find it necessary to step backward in order to perform the duties of their employment.
The judge erred in sustaining the general demurrer and dismissing the petition.
Judgment reversed. Felton, C. J., and Nichols, J., concur.