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Lawskills.com Georgia Caselaw
KING et al. v. SIMMONS.
40920.
Action for damages. Savannah City Court. Before Judge Oliver.
EBERHARDT, Judge.
Where this court in considering a motion for new trial after the first trial of a case held that the evidence did not demand a verdict for either party, the ruling is the law of the case, and where the evidence on a second trial was substantially the same as that on the first, it was not error to overrule a motion for judgment notwithstanding the verdict.
James Simmons, the servant of E. D. King, trading as A. F. King & Son, brought suit against the master and against his foreman, W. C. Baker, for damages resulting from injuries sustained when he fell from a ladder. He testified that the ladder, an old homemade one, was obtained by Baker from under a house (though he had not known where it came from) and furnished to him for use in his job as a carpenter; that he had used the ladder for approximately two weeks before one of the rungs broke, causing him to fall to the concrete pavement and suffer injuries, and that it broke when he was in the act of handing a piece of lumber to a fellow servant on the job. There was a conflict in the evidence as to whether a rung of the ladder broke, as the plaintiff contended, and as to whether a ladder tendered in evidence was the one from which the plaintiff fell (a ladder was tendered for showing that no rung had broken). After verdict for the plaintiff the defendant moved for judgment notwithstanding the verdict on the ground that the evidence demanded a finding that the servant had equal means with the master of knowing the defect or danger in the ladder supplied to him. The motion was overruled and defendant excepts.
This case was tried once before, resulting in a verdict for the plaintiff, and the defendant obtained a review in this court of the overruling of his motion for new trial, as amended. See A. F. King & Son v. Simmons, 107 Ga. App. 628 (131 SE2d 214). We have reviewed carefully the evidence in the record of that case and that in the present record and find no substantial difference. Accordingly, the ruling made on the prior appearance in considering the general grounds of the motion for new trial that "The evidence in this case did not demand a verdict for either party," is the law of the case, Greenwold Grift Co. v. Durham, 191 Ga. 586 (1) (13 SE2d 346), R. O. A. Motors, Inc. v. Taylor, 220 Ga. 122 (1) (137 SE2d 459), and it must follow that on substantially the same evidence it was not error to overrule the motion for judgment notwithstanding the verdict.
Moreover, it was held in the former appeal that "[I]t was for the jury's determination in this case as to whether the ladder furnished the plaintiff was defective, whether the defendant employer in the exercise of ordinary care should have inspected the ladder or cautioned the plaintiff to inspect the ladder before using the same and whether by the exercise of due diligence in inspecting the ladder the defective condition of the same could have been discovered . . ." 107 Ga. App. 628, at p. 633.
While there is ample evidence in the present record to have authorized a finding that the servant had equal means with the master of knowing the condition of the ladder, yet the above questions which have been held, under the evidence, to be questions for the jury, must have been resolved to make that determination, and the jury has resolved them against the master. In the light of the rulings made on the prior appeal, now the law of the case, there was no error in overruling the motion for judgment notwithstanding the verdict.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
Lewis & Javetz, Jack H. Usher, contra.
Shelby Myrick, for plaintiffs in error.
DECIDED SEPTEMBER 29, 1964 -- REHEARING DENIED OCTOBER 15, 1964.
Friday May 22 21:44 EDT


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