Florala Sawmill Co. v. Smith

• Decision Date: 07 April 1908
• Citation: 55 Fla. 447,46 So. 332
• Parties: FLORALA SAWMILL CO. v. SMITH.
• Court: Florida Supreme Court

46 So. 332

55 Fla. 447

FLORALA SAWMILL CO. v. SMITH.

Florida Supreme Court, Division B.

April 7, 1908

Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.

Action by Aaron Smith against the Florala Sawmill Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The propriety or impropriety of an instruction, or part of an instruction, is determined by a consideration of all the instructions and charges given by the trial court, in connection with the questioned instruction and the proven facts.

The giving abstract instructions should be avoided when it is possible to do so, because they are sometimes misleading but, to be a ground for reversal, it must affirmatively appear that they were misleading.

In view of the fact that there was evidence tending to support the issues presented by the plaintiff, the defendant was not entitled to an affirmative instruction.

Whether or not a witness has such special knowledge as to qualify him to testify as an expert is to be determined by the trial judge exercising a reasonable discretion, and his action will not be disturbed, unless it affirmatively appears from the record that he erred. The exact amount of special knowledge such a witness must have cannot be expressed in the terms of an abstract proposition of law.

The general principles of law applicable to the main facts of the instant case are set forth in Camp v. Hall, 39 Fla 535, 22 So. 792 (third, fourth, fifth, and sixth headnotes); Green v. Sansom, 41 Fla. 94, 25 So. 322; Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 So. 516.

COUNSEL Blount & Blount, Blount & Carter and Daniel Campbell & Son, for plaintiff in error.

Maxwell & Reeves, for defendant in error.

OPINION

HOCKER J.

This is a suit for personal injuries brought by the defendant in error, hereinafter called the plaintiff, against the plaintiff in error, a corporation, hereinafter called the defendant, in the circuit court of Walton county. The third amended count of declaration is as follows:

'The plaintiff further sues the defendant for that the defendant on, to wit, the --- day of August, A. D. 1905, was operating a certain steam sawmill in said county and state and the plaintiff, who was on said date a minor under the age of 21 years, was employed by the defendant as a laborer in said mill subject to the orders of the foreman thereof; that in the said mill, and as a part of the machinery thereof, were two circular saws known as 'cut-off saws,' attached to and operated by swinging frames suspended from overhead shafts; that the said saws ran in slots or grooves cut in and crosswise a table or platform beneath said frame, upon which table or platform would rest the material to be cut by said saws; that the frame to which one of said saws was attached was so constructed and equipped with weights and appliances as promptly to throw said saw thereto attached upon being released after use back into the slot or groove which it was designed to occupy, and there to hold the same firmly and steadily when not in actual use; that the frame to which the other one of said saws was attached was so negligently and defectively constructed as to allow the said saw irregularly to swing back and forth when said machinery was in motion from the position which it was designed to occupy in said slot or groove, and in such a manner as to be a most dangerous menace to life and limb of those who might be employed at or near it, yet the defendant negligently failed to provide the said frame and saw with any equipment or appliance to prevent the said saw from swinging irregularly from its position when not in use and continued to operate said saw, and caused same to be operated in its said defective, unsafe, and dangerous condition, and was so operating it at the time of the injury of the plaintiff hereinafter alleged; that, at the time of said injury, the plaintiff was without any experience whatever in the operation of any of said machinery or any machinery similar thereto, save and except an experience acquired during the three days next preceding the time of said injury, during which time he was employed at the saw, which had weights attached to the frame thereof and which ran steadily in its position, but that the plaintiff had had no experience about the other one of said saws, and had no knowledge or warning of its defective, unsafe, and dangerous condition, or that it would swing back and forth from its position in the manner aforesaid, all of which was known to the defendant, yet the defendant, disregarding its duty in this behalf through its foreman, and without any warning whatever to the plaintiff of the defective, unsafe, and dangerous condition of said saw, directed and required the plaintiff to leave his work at the said saw which had the weights attached to the frame thereof, and which ran steadily in the position which it was designed to occupy, and to keep up the same duties at the defective, unsafe, and dangerous saw which irregularly swung back and forth from its position in the manner aforesaid; that on said date the plaintiff, while so without warning, experience, or knowledge as aforesaid, and while in the discharge of his duties under the direction of said foreman in said mill, went to work at and near the said defective, unsafe, and dangerous saw, which was without any appliances to hold same in position as aforesaid, and while so engaged, and while placing the first piece of material upon the said platform or table for the purpose of cutting same by means of said saw, the said saw suddenly and unexpectedly swung from the position in said slot or groove which it was designed to occupy, and was thereby brought in contact with the plaintiff's left hand, and then and there and thereby severed from the plaintiff's left hand several fingers, and otherwise wounded, maimed, and injured it, all of which was done during the first minute of the plaintiff's employment at the said defective, unsafe, and dangerous saw; that, by reason of the said injury so occasioned, the plaintiff has suffered great paid of body and of mind, and has been put to great expense for medical care and treatment, and has suffered great inconvenience and annoyance and much loss of time and profit by reason of said injury, and has thereby been permanently disabled and disfigured, and has been greatly incapacitated for labor, and his earning power has been permanently impaired, to the damage of the plaintiff in the sum of ten thousand ($10,000.00) dollars. Wherefore plaintiff sues and claims ten thousand ($10,000.00) dollars.'

The second amended count is very similar to the third, except that it is somewhat fuller in its statements as to the negligent and defective arrangement of the saw by which the plaintiff was injured.

The first amended count is also very similar to the third, except that it alleges that the machinery was defective, in that the planing machine was liable to clog, and to thus throw the power upon the saws causing an accelerated motion and vibration.

The first amended count was demurred to, and the demurrer was overruled. The pleas of not guilty and of contributory negligence of the plaintiff were filed by the defendant, issue was joined thereon, and the case submitted to the jury on the issues presented. There was a trial which resulted in a verdict and judgment in favor of the plaintiff for $1,000, from which judgment a writ of error was taken.

The plaintiff's testimony shows that on the 30th of August 1905, he was working for the defendant at its sawmill, and had the fingers of his left hand cut off by a trimming saw which he had been directed to operate. He had been working about the sawmill of the defendant as fireman for about 18 months; was hired by the foreman, who it appears had full authority over all the hired men. He was hired to work at a trimming or cut-off saw on the south side of the mill. He had been working at this saw for three days, when the foreman hurriedly told him to go to work at another trimming saw 30 or 40 feet from the one he first worked at. These trimming saws were attached to swinging frames and operated upon a table upon which planks were laid and cut into short lengths by a person standing at the table, who handled the plank to be cut, and pulled the saw forward against the plank in cutting it. The saws worked in slits in the planks of the tables. The plaintiff's evidence tends to prove that he had had no experience in working these saws until three days before he was injured. He was a minor about 20 years old. The first saw he worked at was arranged with a weight attached to the heavy iron frame overhead, which was designed and had the effect to hold the saw steady when the party using it turned it loose, when it went back to the center of the table by force of its gravity, or even further back than the center. The mechanism was so arranged that the saw was held steadily at the desired place in the table. It appears from the evidence that the iron frames in which these saws were suspended and worked weighed about 200 pounds, and, when they came from the factory, they had these weights attached to the frames, and it seems therefore they were designed to work with these weights. When the plaintiff was directed by the foreman to leave the first saw and go to work at the second saw, he was not informed by the foreman that the last saw was arranged differently from the first one, that the weight had been taken off, and that it was a dangerous machine; and, being inexperienced, he says he did not observe it. The evidence tends to show that the last saw, being without the weight, would vibrate or oscillate in the slit in the table on which it worked when it...