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Action for damages. Fulton Superior Court. Before Judge Pharr. May 19, 1959.
1. Where the owner of premises employs a general contractor to construct a dwelling house upon the same, and places the general contractor in possession and control of the premises, a subcontractor whom the general contractor employs to do certain work connected with the construction of the building, is an invitee of the general contractor to whom the latter owes the duty of ordinary care. Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507 (116 S. E. 57); Mozley v. Beers Court. Co., 97 Ga. App. 217 (102 S. E. 2d 645).
2. Code 105-201 defines ordinary diligence: "In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Applied to preservation of property, ordinary diligence means that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed ordinary negligence." In Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 S. E. 2d 721) is the pronouncement: "The duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant. Elrod v. Ogles, 78 Ga. App. 376 (50 S. E. 2d 791). In either case, two elements must exist in order to merit recovery--fault on the part of the owner, and ignorance of the danger on the part of the invitee." Accordingly, the duty which the general contractor, in the circumstances related, owes the subcontractor is to exercise the care of an ordinarily prudent person to prevent him being exposed to a hazard or hazards other than those that ordinarily attend a person's presence on premises where a dwelling house is being built. Ditches are customarily opened near a dwelling house in the process of construction to accommodate water pipes, sewer lines, gas pipes, and for similar purposes, and do not constitute unusual hazards. Baxley v. Williams Const. Co., 98 Ga. App. 662, 670, 672 (106 S. E. 2d 799); Nechtman v. B. Thorpe & Co., 99 Ga. App. 626 (109 S. E. 2d 633). The same is true of planks loosely or insecurely placed across the ditches for the use of workmen engaged in building. Terry Shipbuilding Corp. v. Dubose, 25 Ga. App. 158 (102 S. E. 844).
3. If the failure of the contractor to furnish lights to reveal such hazards, as are referred to in the preceding paragraph amount to a failure on his part to exercise ordinary care to prevent injury to the subcontractor, the latter is equally negligent in going on and over the premises where it was to be reasonably expected perils and pitfalls incident to building activities exist and are concealed by the darkness. Fricks v. Knox Corp., 84 Ga. App. 5, 10 (65 S. E. 2d 423); Bridger v. Gresham, 111 Ga. 814 (35 S. E. 677). In such circumstances one who chooses to walk in darkness does not exercise ordinary care for his own safety. Mattox v. Atlanta Enterprises, 91 Ga. App. 847, 849 (87 S. E. 2d 432); Barley v. Williams Const. Co., 98 Ga. App. 662, 670, supra; Nechtman v. B. Thorpe & Co., 99 Ga. App. 626, supra; Flournoy v. American Hat Mfg. Co., 21 Ga. App. 599 (94 S. E. 835); Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Emerson v. Mutual Realty Co., 48 Ga. App. 839 (174 S. E. 144).
4. Where the petition discloses that the plaintiff went on premises which were shrouded in darkness and made no effort to ascertain whether certain planks were firmly anchored to the sides of a ditch over which they extended, and no facts are alleged to show that the insecurity of the planks would have been discovered by an ordinarily prudent examination of the same, the allegation is a conclusion of the pleader. The rule that is here applicable is well stated in Frierson v. Mutual Realty Co., 48 Ga. App. 839, supra. It is, if course, elementary that a cause of action cannot be supported by the allegation of a conclusion, not supported by the facts alleged. Hendricks v. Jones, 28 Ga. App. 335, supra; Anderson v. Atlanta Newspapers, 212 Ga. 776 (95 S. E. 2d 847); Reese v. Southern Ry. Co., 35 Ga. App. 369 (1a) (133 S. E. 284).
6. The petition failed to allege actionable negligence on the part of the defendant and disclosed that the plaintiff was not in the exercise of ordinary care for his own safety. The judge did not err in sustaining the general demurrer.
Smith, Kilpatrick, Cody, Rogers & McClatchey, E. P. Rogers, George B. Haley, Jr., contra.
D. W. Rolader, for plaintiff in error.
Saturday May 23 00:33 EDT

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