In a suit brought by a servant against his master for personal injuries, mere allegations of limited vision and a reduced mental competence do not alone meet the requirements that the petition affirmatively allege due care by the servant and that the servant did not know or have equal means of knowing all that which is charged as negligence against the master.
Appellant, defendant below, appeals from the overruling of his motion to dismiss the plaintiff's action against him for negligence.
Plaintiff alleges in his petition that on June 28, 1965, he was employed as a domestic servant by the defendant's wife and agent. Plaintiff alleges that he suffered from a congenital defect of vision which restricted his sight to the extent that his activities and working ability were limited. It is not alleged that he could not see the conditions under which he was working. He further alleges that he was only able to complete the fourth grade of school because of the said congenital defect of vision. He further alleges that he generally handles his own affairs and has never been declared mentally incompetent.
Plaintiff alleges that on the aforesaid date defendant's wife and agent knew of the plaintiff's partial blindness. He alleges that on the aforesaid date defendant's wife and agent employed plaintiff to clean defendant's home and to cut grass in defendant's yard by use of a gasoline motor powered lawn mower. He alleges that during the night and in the morning of June 28th it had rained and the grass was still wet at 12 noon when the plaintiff alleges he was cutting the grass. Plaintiff alleges that while cutting the grass he slipped on the wet grass, his foot slid under the lawn mower and his big toe on his left foot was amputated. He alleges that defendant is liable to him because of the following acts of negligence on the part of defendant's wife and agent (set out in Paragraph 19 of the petition):
"(a) Failing to provide a safe place of employment, in that she knew of the limitation of vision of your petitioner, yet directed him to engage in the hazardous duty of attempting to cut the grass in her yard while it was wet and slippery and at a point where the ground was sloping.
"(b) Failing to warn your petitioner of the hazards inherent to attempting to cut grass which was wet and at the point where the ground was sloping, with a gasoline motor powered lawn mower.
"(c) Directing your petitioner to engage in the hazardous work of cutting grass with a gasoline motor lawn mower when she knew of his limitation of vision and defect of mental competence to protect himself."
The several enumerations are that it was error to overrule the defendant's motion to dismiss in the nature of a general demurrer.
The general rules of pleading supported by numerous negligence cases in Georgia, other than cases involving the relation of master and servant, are that a plaintiff is ordinarily not required in his petition to negative a defense of contributory negligence (Shipman v. Johnson, 87 Ga. App. 538
, 542 (74 SE2d 557
); Bedding v. Sinclair Refining Co., 105 Ga. App. 375
, 377 (124 SE2d 688
); Fricks v. Cole, 109 Ga. App. 143
, 146 (135 SE2d 512
)), but a demurrer to the petition is proper and will be sustained if the allegations of the petition clearly show that the plaintiff was at fault and could by the exercise of ordinary care have avoided the consequences. Abrams v. City of Waycross, 114 Ga. 712 (40 SE 699)
; Williams v. Owens, 85 Ga. App. 549 (69 SE2d 787)
; Misenhamer v. Pharr, 99 Ga. App. 163 (1) (107 SE2d 875)
But the rule is different in suits brought by a servant against his master for personal injuries sustained while acting within the scope of employment. The servant must affirmatively plead his own diligence. "In suits for injuries arising from the negligence of the master, when the dereliction of duty consists in the failure to provide a safe place to work, or a failure to warn the servant of an unknown danger, the servant must not only make it appear that the master failed to perform his duty to furnish him a safe place to work, or warn him of an unknown danger, but also that the servant injured did not know and had not equal means of knowing of the defective condition of the instrumentality employed or of the danger, and by the exercise of ordinary care could not have known thereof; and it is necessary to allege these facts in the complaint." Dunbar v. Hines, 152 Ga. 865
, 871 (111 SE 396
); Holman v. American Automobile Ins. Co., 201 Ga. 454 (2) (39 SE2d 850)
; Quinn v. Allen, 1 Ga. App. 807
, 809 (57 SE 957
); Day & Co. v. Graybill, 24 Ga. App. 524 (101 SE 759)
; Ogain v. Imperial Cafe, 25 Ga. App. 415 (103 SE 594)
; A. F. King & Son v. Simmons, 107 Ga. App. 628 (1) (131 SE2d 214)
. The reason for requiring such affirmative allegations by the servant is because the principles of equal opportunity for knowledge and assumption of risk are involved.
Construing the allegations of plaintiff's petition most strongly against him (as we must on general demurrer), the petition does not allege due care on the plaintiff's part nor does it appear that the plaintiff did not know and had not equal means of knowing all that is charged as negligence to the master. The general allegations that plaintiff had limited vision and a reduced mental competence which limited his working ability cannot, without more, substitute for the aforesaid requirements. This holding is not in conflict with Jordan v. Batayias, 53 Ga. App. 538 (186 SE 451), relied on by defendant, wherein the court held that a minor twelve years of age, acting as a servant, does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adult persons. The petition in the present case alleges plaintiff is 36 years of age.
The court erred in overruling the defendant's motion to dismiss the petition.
Judgment reversed. Bell, P. J., and Pannell, J., concur.