Aqua System v. Kodakoski

• Decision Date: 04 March 1937
• Docket Number: No. 8252.,8252.
• Citation: 88 F.2d 395
• Parties: AQUA SYSTEM, Inc., v. KODAKOSKI
• Court: U.S. Court of Appeals — Fifth Circuit

88 F.2d 395 (1937)

AQUA SYSTEM, Inc., v. KODAKOSKI

No. 8252.

Circuit Court of Appeals, Fifth Circuit.

March 4, 1937.

Alfred C. Kammer, of New Orleans, La., and Wm. A. Van Siclen, of Ancon, Canal Zone, for appellant.

Chauncey P. Fairman, of Cristobal, Canal Zone, for appellee.

Before FOSTER and SIBLEY, Circuit Judges, and HOLLAND, District Judge.

FOSTER, Circuit Judge.

This suit was brought by appellee to recover damages for personal injuries accidentally incurred in the course of his employment as a laborer by appellant. The complaint alleged that the accident was caused by the sudden and unexpected dropping of a large wooden pile by other men with whom plaintiff was engaged in carrying it. The negligence of the employer alleged was: (1) Failure to use ordinary care in selecting the employees engaged in the work; (2) failure to provide a safe place to work; (3) failure to direct the work of carrying the pile; (4) failure to advise or instruct plaintiff respecting the danger of the work; (5) failure to warn or notify plaintiff of the proposed throwing or release of the pile by the other men carrying it. The answer denied negligence and pleaded negligence of fellow servants and assumption of risk. The question of contributory negligence of plaintiff was not raised. At the close of plaintiff's evidence defendant moved for a directed verdict, which was refused. Defendant elected to stand upon its motion and did not introduce any evidence. The case was submitted to the jury on the evidence introduced by plaintiff on instructions leaving it to the jury to decide every point raised by the pleadings, and resulted in a verdict for plaintiff, in the sum of $8,500, upon which judgment was entered. Error is assigned to the overruling of the motion for verdict.

It is not disputed that plaintiff was employed by defendant and was seriously injured in the course of his employment. As to the cause of the accident, plaintiff and two other witnesses testified. No other evidence was presented on this point. This evidence tends to show the following facts: Plaintiff was 43 years of age and for 5 years prior to the accident had been engaged in working as a laborer on construction work in the Canal Zone, sometimes as a carpenter or carpenter's helper, but most of the time as an ordinary laborer. He was employed by the day as ordinary laborer by Sullivan, superintendent over a construction job being done by defendant, and was to be paid at the rate of 40 cents an hour. His employment began on the morning of February 5, 1935. He was first engaged with other laborers in digging dirt and moving it from the hole with a wheelbarrow. A crew of eight men was engaged in carrying piles, from a place where they were stored, for a short distance to a place where they were to be used. About 10 o'clock in the morning it was necessary to move one of these piles which was too large for the crew of eight to handle. Plaintiff and two other men were taken off the excavating job and sent by Sullivan to help in the moving of this pile. Plaintiff made no protest as to the change in the character of his work. He was not instructed as to the method of doing the work nor warned of any danger in this respect. The other ten men raised up the pile, the butt of which was put upon plaintiff's left shoulder and he was given the first position in carrying it. It may be assumed that the other ten men carried the pile on their right shoulders, although the evidence is not clear that all of them did so, but the pile was placed on the shoulders of all the men and all of them carried it. Some one said, "Go straight," and the gang started with it. After they had gone 100 to 150 feet and were still moving towards their objective, but before they had reached it, the pile slipped or was thrown off the shoulders of the other men. Plaintiff was knocked down and injured by the pile falling on him. No one gave any order to throw or release the pile and the accident is otherwise unexplained. Sullivan was about 10 feet away when the accident happened. There was no evidence tending to show that either Sullivan or plaintiff's fellow servants were incompetent. There was no particular rule as to which shoulder the men should carry the piling on, that being a matter they settled among themselves in doing the work. There was no evidence tending to show the method of carrying the pile was more dangerous than usual or that there was a safer way. Nor that defendant had notice of any want of ordinary skill in doing the work on the part of plaintiff.

The law of the Canal Zone governing the case is to be found in the Canal Zone Code, sections 1311, 1312, 1313 of article 3 and section 1328 of article 4 of title 3. So far as necessary to quote, they provide:

"1311. An employer must indemnify his employee, except as prescribed in the section next following, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer. * * *

"1312. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee, or unless the employer has neglected to use ordinary care in the selection of the culpable employee: Provided, nevertheless, That the employer shall be liable for such injury when the same results from the wrongful act, neglect, or defraud of any agent or officer of such employer, superior to the employee injured, or of a person employed by such employer having the right to control or direct the services of such employee injured. * * *

"1313. An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care."

"1328. An employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill."

Since the Canal Zone Code does not define the duties of an employer to his employees, the...