10291.

#### DAY & COMPANY *v.*GRAYBILL.

In an action by a servant against a master for injury from a fall alleged to have been caused by the turning of a loose and insecure board of a step when the plaintiff stepped upon it in descending the steps of a building in which she was working for the defendant, where it did not appear from the petition that the defendant knew of this condition of the step, and where the petition alleged that the plaintiff was “daily and constantly using said steps when working in and about” the premises, no cause of action was stated; it appearing from the allegations of the petition (construed, as they must be, most strongly against the plaintiff) that the plaintiff had opportunities equal to those of the defendant of knowing of the defect in the step. The eourt erred in overruling the general demurrer to the petition.

Decided December 9, 1919.

Action for damages; from Fulton superior eourt—Judge Pendleton. December 12, 1918.

*W. 0. Wilson,*for plaintiffs in error.

*Westmoreland, Anderson & Smith,*contra.

Bloodworth, J.

Mrs. Estelle Graybill sued W. A. Day *&*Company for damages resulting from a fall as she descended a pair of steps in the building where she worked for the defendant. A general demurrer to the petition was overruled and the defendant excepted. The 8th paragraph of the petition is as follows: “It is averred, that defendant had negligently allowed the tread of the bottom step to become loose and insecure, which was unknown to the plaintiff, nor had she equal means with the master for ascertaining this fact, nor had she been warned of this defective condition of said steps, and that when she stepped on the same the board turned under her foot and threw her as alleged; that defendant was negligent in allowing the steps to get out of repair, making it unsafe for employees to use the same, and negligent in not inspecting same and warning plaintiff of the defective condition of the said steps, which could have easily been ascertained by inspecting same; negligent in not having it repaired and placed in good order, so that it could be used for the purpose and intent, especially when defendant knew that plaintiff and other employees were daily and constantly using said steps when working in and about the store.” Further than is stated in this paragraph, there is no allegation of knowledge of the master of the condition of the steps. While the plaintiff alleges in this paragraph that she did not have equal means with the master of ascertaining the *525defective condition of the steps, the allegations in the latter part' of the same paragraph show that she was “daily and constantly using said steps when working in and about the store.”

The allegations in the petition must be construed most strongly against the pleader, and, so construing them, the latter part of the paragraph quoted above shows that the plaintiff had at least equal means with the master of knowing the defective condition of the steps. If the servant “had equal means with the master of discovering the danger, any injury resulting to him would be the result of his own fault.” *McDonnell*v. *Central Railway Co.,*118 *Ga.*86, 89 (44 S. E. 840). “If both the plaintiff and the defendant had equal opportunities of discovering this patent defect in the appliance on the day the accident occurred, then the defendant would not be liable for an injury resulting therefrom.” *Stewart*v. *Seaboard Air-Line Railway,*115 *Ga.*628. In the case of *Ludd*v. *Wilkins,*118 *Ga.*525, 526 (45 S. E. 429), the injury to the plaintiff’s husband was alleged to have been caused by the slipping of a plank. In the opinion it was said: “Let it be conceded that it was negligence on the part of defendant not to have had the plank fastened in some way. It is apparent from the testimony that the plaintiff’s husband had equal means with the defendant of knowing that the plank was not fastened, and by the exercise of ordinary care could have discovered this fact. Upon one who brings a suit against a master for injuries to a servant it is incumbent to show not only negligence on the part of the master, but due care on the part of the servant; and it must appear that the servant injured did not know and had not equal means of knowing all that which is charged as negligence to the master, and by the exercise of ordinary care could not have known

thereof. Civil Code, § 2612 [now § 3131]; *Daniel*v. *Forsyth,*106 *Ga.*568 [32 S. E. 621], and cases cited; *Winship Co.*v. *Burger,*110 *Ga.*296 [35 S. E. 120]; *DeLay*v. *Ry. Co.,*115 *Ga.*934 [42 S. E. 218].” From the above it is apparent that the petition in this case fails to set forth a cause of action against the defendant, and the court erred in overruling the demurrer to the petition. See *Taylor*v. *Virginia-Carolina Chemical, Co.,*4 *Ga. App.*705 (62 S. E. 470); *Williams*v. *Atlantic Coast Line Railroad Co.,*18 *Ga. App.*120 (89 S. E. 158), and cit.

*Judgment reversed.*

*Broyles, C. J., and Luke, J., concur.*