Geo. E. Wood Lumber Co. v. Gipson

• Decision Date: 02 April 1912
• Citation: Geo. E. Wood Lumber Co. v. Gipson, 58 So. 364, 63 Fla. 323 (Fla. 1912)
• Parties: GEO. E. WOOD LUMBER CO. v. GIPSON.
• Court: Florida Supreme Court

58 So. 364

63 Fla. 323

GEO. E. WOOD LUMBER CO. v. GIPSON.

Florida Supreme Court

April 2, 1912

On Rehearing, April 16, 1912.

Error to Circuit Court, Washington County; J. W. Perkins, Judge.

Action by Addie P. Gipson, by her next friend, J. T. Gilmore against the Geo. E. Wood Lumber Company.Judgment for plaintiff, and defendant brings error.Affirmed.

Syllabus by the Court

SYLLABUS

A charge or instruction directing a verdict for the defendant should never be given, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for the plaintiff.If the evidence is conflicting, or will admit of different reasonable inferences, or if there is some evidence tending to prove the issue presented by the plaintiff, it should be submitted to the jury as a question of fact, and not taken from the jury and passed upon by the judge as a question of law.

Questions of negligence and of contributory negligence are for the jury to determine when the facts are controverted.

In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for a new trial, which is based upon the sufficiency of the evidence to sustain the verdict, the question thereby presented to an appellate court is whether or not the jurors acting as reasonable men could have found such verdict from the evidence adduced.If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

Even though some of the language used in portions of the general charge and instructions of which complaint is made was not so happily chosen as might have been, an appellate court cannot be expected to apply the principles of absolute precision and technical nicety in construing the same.It is sufficient to determine that no reversible error has been made to appear therein.

On Rehearing.

Negligence of the defendant employer appearing upon which liability in damages may be predicated, and, contributory negligence not clearly appearing, a verdict for the plaintiff cannot be said to be erroneous as matter of law.

COUNSELJohn C. Avery, of Pensacola, for plaintiff in error.

W. O Butler, of Chipley, and Smith & Davis, of Marianna, for defendant in error.

OPINION

SHACKLEFORD J.

An action was brought by the defendant in error against the plaintiff in error, seeking to recover damages for the death of her husband, which is alleged to have been occasioned by the negligence of the defendant corporation.The declaration contains three counts and is quite lengthy.Pleas of not guilty, that the injury was occasioned by the negligence of the decedent, contributory negligence of the decedent, and assumption of risk by the decedent, were filed, upon which the plaintiff joined issue and the case was tried before a jury.Such trial resulted in a verdict and judgment in the plaintiff's favor for the sum of $5,000, which judgment the defendant seeks to have tested here by writ of error.A number of errors are assigned, some of which are abandoned and others are grouped and argued together.We have given all the assignments which are urged before us a careful examination, but shall discuss only such of them as seem to merit treatment.

The declaration alleges, in substance, that the defendant was the owner and operator of a sawmill, and that C. G. Gipson, the husband of the plaintiff, was at the time of the injury to him, which resulted in his death, in the employ of the defendant, being then about 20 years of age.It is further alleged that the sawmill of the defendant was located on the Choctowhatchee river, and that there was a place in such river arranged for the holding of the defendant's logs and boom.For the better understanding of this opinion, we give the following excerpt from the declaration:

'That along by the side of said boom at a height of between 25 and 30 feet above the normal height or condition of the water in said boom there was a railroad track which was used by the defendant for the operating and running of its cars in the hauling of its logs from the woods to the said mill, and from which point the logs were unloaded from the said mill and into said boom.That as aforesaid this railroad was located 25 or 30 feet above the normal condition of the water in said boom, and that from the railroad track down to the bank of said boom there was a steep incline down which the logs from the cars were rolled when unloaded, called the 'ramps.'That at the bottom of the ramps and on the banks of the boom there was a small flat level place, extending practically the entire length of the boom, and upon which a great many logs usually stopped when being unloaded from the cars and rolled down this steep incline, called the 'ramps.'That this steep incline or ramps, when kept in good condition, the logs when unloaded from the cars, would roll down this incline or ramps at great rapidity, but that on the day aforesaid these ramps were in bad condition, the poles or logs extending from the top of the ramps down to the bottom and upon which the logs, when unloaded from the cars, were rolled, had been allowed to get in bad condition, and many of them were in such condition as that they impeded the progress of the logs when unloaded from the cars on their way down to the bottom of the ramps and into the boom.And that by reason thereof many logs, when unloaded from the cars, were arrested or stopped on the way down this steep incline or ramps, which required much labor to break or loosen so as to allow the logs to roll down in their course to said boom.

'Plaintiff alleges that on the 2d day of September, 1909, C. G. Gipson, now deceased, the husband of the plaintiff, was in the employ of the said defendant, and was, by the said defendant, directed to go down to this boom together with one or two other laborers, to make some special selections out of logs that lay along at the bottom of the ramps or in said boom, that defendant wished to have manufactured into some special kind of lumber or for some special or specific use; and that under the specific directions and orders given him by the said defendant to go to the said point to make said selections from said logs, for said purposes, he, on the said 2d day of September, 1909, went to said point as ordered and directed by said defendant; and that just immediately after reaching said point where he was to make selections of special logs, and while at or near the bottom of said ramps, a lot of logs which had become locked or lodged at the top of said ramps, became unfastened and broke loose from where they had become lodged and locked, up at the top of said ramps, and rolled down said ramps with great rapidity, and in and upon the said C. G. Gipson with such force and rapidity that it was impossible for him to escape, said logs striking in and upon the body with great force, and

...