Gallespie v. Thornton

• Citation: 117 So. 714,95 Fla. 5
• Parties: GALLESPIE v. THORNTON.
• Decision Date: 27 July 1927
• Court: United States State Supreme Court of Florida

117 So. 714

95 Fla. 5

GALLESPIE v. THORNTON.

Florida Supreme Court, Division B.

July 27, 1927

Rehearing Granted Nov. 1, 1927.

Judgment Reaffirmed July 2, 1928.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Oak Thornton against R. J. Gallespie. Judgment for plaintiff, and defendant brings error.

Affirmed on condition that plaintiff remit a portion of damages awarded; otherwise reversed for a new trial.

Syllabus by the Court

SYLLABUS

Evidence held to sustain cause of action for personal injuries to employee required to work in concrete pan negligently constructed. There was ample evidence to sustain this cause of action as stated in the second count of the declaration and, the jury having returned a verdict in favor of the plaintiff, we are unable to say that the verdict was without material and sufficient evidence to support the same, or that the evidence introduced so strongly sustained either of the defendant's pleas that it becomes the duty of the court to reverse the judgment based upon the verdict of the jury rendered upon such evidence.

Master is liable for injury to servant resulting from undue risks when imposing new functions on instrumentality suitable for performance of other work; master's acquiescence in use of appliance for purpose other than originally intended places him in same position as though appliance was originally furnished therefor; fact that appliance had been diverted to new usage will not render master liable, if diversion occurred without his knowledge or consent occasional improper use of appliance, not in pursuance of recognized custom, is not sufficient to render master liable for resulting injuries; negligence will not be imputed to employer of experienced men because he permits them to relax his regulations or disregard general instructions. If new functions are imposed upon an instrumentality by the master himself or his representative, and the servant is thereby exposed to undue risks, the master must answer for any injury resulting from those risks, and cannot excuse himself by showing that the instrumentality was a suitable one for the performance of the work for which it was originally supplied. The master's acquiescence in the use of an appliance for some purpose other than that for which it was intended puts him in the same postition as if the appliance had been originally furnished for that purpose. Accordingly, a qualification of the rule that a servant cannot recover in the absence of evidence showing that the appliance in question was constructed with reference to the use to which it was being put when the accident occurred is admitted in cases where it appears that it was customary for employees to put it to that use, and that the master knew of this custom. But the mere fact that an appliance had been diverted to new uses before the accident in suit will not render the master liable, if that diversion occurred without his knowledge or consent. Nor is an occasional improper use of an appliance not in pursuance of a recognized custom, sufficient to render the master liable on the ground of acquiescence. Nor will negligence be imputed to an employer of experienced men so as to render him liable for injuries sustained by them, because he permits them to relax his regulations or disregard his general instructions or advice, when they choose to do so for their own convenience, and with knowledge of the risk.

Master's liability for sending employee to labor in ignorance of danger is measured by application of rules relating to use of appliances for purpose not intended; master, with knowledge of danger, sending employee unwittingly into trap, is liable for resulting injury. If, in ignorance of the danger, the master sends an employee to labor, his responsibility is measured by the application of the rules relating to the use of appliances in a way and for a purpose not intended. But if he knows of the danger--knows that there is a trap--and yet sends the employee unwittingly into the trap, he is not only morally guilty but civilly liable. And, of course, the master might be liable, even in those cases where he is not morally guilty, for he might be chargeable if his agent had knowledge of the trap.

Master who sanctions use of appliance for purpose different than originally intended must exercise care to have appliance reasonably safe. A master who sanctions the continuous use of an appliance by his employees for a purpose different from the one it was designed for is bound to exercise care to have the appliance reasonably safe for the employee's use in this novel purpose.

Employee is not charged with assumption of risk rising out of defective appliances provided by employer, unless realizing danger. An employee is not charged by law with the assumption of a risk rising out of defective appliances provided by his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the dangers incident to the use of such appliances.

Employee assumes risk of dangers normally incident to occupation, unless attributable to employer's negligence; employee may assume that employer has exercised proper care in providing safe place to work, and suitable and safe appliances; employee does not assume risk arising from defect attributable to employer's negligence, unless aware of defect, or plainly observable. An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer's negligence. But the employee has a right to assume that his employer has exercised proper care with respect to providing a safe place to work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer's negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it.

Employee, to be charged with assumption of risk attributable to defect due to employer's negligence, must have known defect endangered safety. In order to charge an employee with the assumption of risk attributable to a defect due to the employer's negligence, it must appear, not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety, or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it.

$15,000 for permanent injuries to back held excessive, warranting new trial or requiring remittitur. It is held that there is evidence to sustain a verdict for compensatory damages under the pleadings, but the amount of the verdict is manifestly excessive. Therefore a remittitur will be permitted. Otherwise a new trial will be granted.

COUNSEL

Marks, Marks & Holt and A. D. McNeill, all of Jacksonville, for plaintiff in error.

Edgar W. Waybright and James Royall, both of Jacksonville, for defendant in error.

OPINION

BUFORD J.

The defendant in error sued plaintiff in error in the circuit court of Duval county for damages alleged to have been sustained while engaged as a workman on a building which was being erected under contract by the plaintiff in error.

The first count of the declaration alleges that the injury for which damage is claimed was occasioned by the plaintiff in error negligently, carelessly, and unskillfully providing a place for the defendant in error to work, in the following language:

'It was necessary to stand on certain pans in the floor of the said building; that the defendant, by his said superior officer and agent, had caused said pans to be constructed so negligently, carelessly, and unskillfully that without fault and without any neglect of the plaintiff, and while he was performing said work in obedience to said orders, one of said pans gave way and broke, whereby, whereby,' etc.

The...