Upchurch v. Culpepper , 17 Ga. App. 577 ( 1916 )

Broyles, J.

1. “The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant’s labor, and where the work in its progress necessarily changes the character for safety of the place in which it is performed as it progresses.” And even where the place of work falls within this general rule, in a suit by a servant against a master for injury to the person or to the property of the servant, received because of the unsafe condition of the place of work, it must . generally appear, not only that the master knew or ought tq have known of the danger, but that the servant did not know of the danger and did not have equal means with the master of knowing such, fact, and by the exercise of ordinary care could not have known it. Where the petition fails to show this, as in this case, it sets forth no cause of action and should be dismissed on demurrer. Holland v. Durham Coal Co., 131 Ga. 715 (63 S. E. 290); Thomas v. Georgia Granite Co., 140 Ga. 459 (79 S. E. 130). See also Southern Ry. Co. v. Taylor, 137 Ga. 704 (73 S. E. 1055); Ludd v. Wilkins, 118 Ga. 525 (45 S. E. 429); Civil Code (1910), § 3131.

2. In this case,the law of master and servant applies, for, under the facts alleged in the.petition, the plaintiff (represented by his agent), whose mules and wagon were injured in excavation work, was not a mere invitee or licensee upon the defendants’ premises, but was in fact and in substance their servant, and assumed the risks and dangers' incident to the ■work.

Decided February 3, 1916.

Certiorari; from Fulton superior court — Judge Ellis, March 6, 1915.

Morrow & Morrow, for plaintiff. Frank Carter, W. H. Beck, for defendants.

3. The judge of the superior court did not err in overruling the certiorari. ' Judgment affirmed,.