Jones v. Crown Construction Co. , 152 Ga. App. 578 ( 1979 )

Smith, Judge.

Appellant Jones contends the trial court erroneously granted summary judgment to appellees, Crown Construction Company, Columbus Paint Company, Haines Layfield, and J. M. Clemmons, the latter two having carried on business under the name of Columbus Paint Company. We dismiss the appeal as to Columbus Paint, Layfield and Clemmons, and we reserve the grant of summary judgment to Crown Construction.

Appellant, a painter by occupation, was an employee of Columbus Paint during September, 1975, when the company was performing its duties as a subcontractor on a post office project in Waycross. Crown Construction was the general contractor on the project, and the contract between Crown and Columbus Paint provided that the latter was to furnish all materials for the project, including scaffolding.

During the morning of September 9, appellant and a fellow employee, utilizing a riding scaffold with railings around it in painting areas they could not reach from the floor, painted the main auditorium of the post office. After lunch, the two proceeded to paint the post office hallway, where steel beams protruded all along the walls at a height of eight feet. Those beams prevented utilization of the riding scaffold, and the two workers decided to use instead three boards which were laying side by side across six of the beams. The 2" x 12" boards were twenty feet long, and the end of each overlapped the first and sixth beams a distance of two inches. Another subcontractor had placed the boards there two or three days before, for the purpose of supporting duct work when it was lowered so that workers could paint behind the duct work. Appellant stated he had observed employees of yet another subcontractor, who were in charge of installing sheetrock, use the boards as a scaffold on a prior occasion. The boards were attached neither to the beams nor to one another, and appellant ascertained that fact on the inspection of the boards which he conducted before using them as a scaffold. Appellant fell when one of the boards "seesawed” due to his stepping on its end, which overlapped a steel beam. After he had collected workers’ compensation benefits from Columbus Paint, appellant brought this suit for personal injury against Crown. Crown impled the other appellees, seeking to recover from them, under an indemnity clause in the subcontract, any damages appellant might recover from Crown.

1. Insofar as it concerns Layfield, Clemmons, and Columbus Paint, the order appealed from did not adversely affect appellant, whose claim was solely against Crown. Appellant has no standing to prosecute an appeal against those parties, and his appeal concerning them is therefore dismissed. Southeastern Erection Co. v. Flagler Co., 108 Ga. App. 831 (134 SE2d 822) (1964). "In order for... appellee [Crown] to present for adjudication errors or rulings by the trial court adversely affecting appellee it is required that appellee file a cross appeal or an independent appeal.” Irby v. Christian, 130 Ga. App. 375 (1) (203 SE2d 284) (1973), reversed on other grounds by Department of Public Safety v. Irby, 232 Ga. 384 (207 SE2d 23) (1974).

2. Appellant contends Crown is liable because, by permitting the boards to remain as they were, it violated its duty to exercise ordinary care not to expose him to unsafe premises. Tect Const. Co. v. Frymyer, 146 Ga. App. 300 (1) (246 SE2d 334) (1976). We agree that issues of fact remain as to whether Crown is liable for a shortcoming in that regard. " 'Here we start with the general proposition that issues of negligence, including such related issues as wanton or contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner.’ 6 Moore’s Federal Practice (2d Ed.) 2583, § 56.17 [42]. 'Summary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to conflicting testimony, as it is in other kinds of litigation. . . Even where there is no dispute as to the facts, it is, however, usually for the jury to say whether the conduct in question met the standard of the reasonable man,’ 3 Barron & Holtzoff-Wright, Federal Practice and Procedure, 106, 109, § 1232.1.” Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178) (1970).

Argued April 4, 1979 — Decided November 7, 1979 — Rehearing denied November 28, 1979.

Crown protests it had no actual knowledge the boards were being used as a scaffold. Assuming that, was the case, nevertheless summary judgment was not warranted, since factual issues remain as to whether Crown reasonably should have foreseen appellant would so use the boards. Neither could appellant be said to have assumed the risk as a matter of law, as the evidence did not conclusively disclose he understood the risk he was encountering, the slipping of a board, and the risk was not so obvious any reasonable man would have ascertained it. See Sparks v. Porcher, 109 Ga. App. 334 (136 SE2d 153) (1964) and Prosser, Law of Torts, 447-450 (4th Ed., 1971) § 68.

Appeal dismissed in part; remainder of judgment reversed.

Quillian, P. J., McMurray, P. J., Banke, Underwood and Carley, JJ., concur. Been, C. J., Shulman and Birdsong, JJ., dissent. Gene Burkett, James A. Hardigg, for appellant. Richard A. Marchetti, Edward W. Szczepanski, for appellees.