German-american Lumber Co. v. Hannah

• Decision Date: 26 October 1910
• Citation: 53 So. 516,60 Fla. 76
• Parties: GERMAN-AMERICAN LUMBER CO. v. HANNAH.
• Court: Florida Supreme Court

53 So. 516

60 Fla. 76

GERMAN-AMERICAN LUMBER CO. v. HANNAH.

Florida Supreme Court, Division A.

October 26, 1910

On Rehearing, November 16, 1910.

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

Action by C. P. Hannah, by next friend, against the German-American Lumber Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A verdict should be set aside when it clearly appears to be contrary to law.

Where contributory negligence prevents recovery, and it clearly appears from the evidence that the negligence of the plaintiff so contributed proximately to the injury complained of that it would not have occurred byt for the plaintiff's negligence, a verdict awarding damages should be set aside.

Where contributory negligence is a complete defense, a minor may be guilty of such contributory negligence as will bar a recovery by him where his age, intelligence, and experience and the surrounding circumstances render him capable of appreciating and avoiding obvious dangers.

At common law a plaintiff could not recover for injuries to himself caused by the negligence of another if he in any appreciable way contributed to the proximate cause of the injury upon the theory that there is no apportionment of the results of mutual negligence.

It is the duty of the master to use due diligence in providing reasonably safe place for the servant to work in, and also the inform the servant of any dangers in the employment that are not of such a character that the servant should know of them, and to warn young and inexperienced employés of dangers in their employment as to which they have no knowledge or appreciation.

If a servant fails to exercise ordinary care for his safety, he cannot in general recover damages for an injury.

Where dangers are obvious, and the servant is capable of appreciating them, a warning as to such dangers by the master is unnecessary.

Where an employé 19 years of age, of at least ordinary intelligence and experience, and accustomed to working in a sawmill needlessly subjects himself to an obvious danger, he cannot recover for injuries to himself that apparently would not have occurred but for his own lack of ordinary care for his safety.

COUNSEL

John C. Avery, for plaintiff in error.

Reeves & Watson, for defendant in error.

OPINION

WHITFIELD C.J.

This writ of error was taken to a judgment awarding damages for personal injuries sustained by Hannah while working in the lumber company's sawmill. The plaintiff was assisting in repair work about the mill, and was told by the man with whom he worked, alleged to be 'his superior workman,' to ask Mr. Thomas, who was in charge of the work, for a babbitt ladle to be used in the repairing being done. Plaintiff asked Mr. Stokes, the foreman of the mill, for Mr. Thomas, and was told where he could be found. While looking for Mr. Thomas the plaintiff went up a ladder, and, in going along a board about 10 inches wide used by the oilers and millwrights in their duties, passed over a rapidly revolving shaft. In returning the same way the plaintiff's pants caught in a set screw that projected five-sixteenths or one-half of an inch out from a safety collar on the revolving shaft, and the plaintiff was seriously injured.

The negligence of the defendant, as alleged, is that it 'negligently suffered said set screw to project above the surface of said collar aforesaid; and through said superior workman negligently directed the plaintiff to seek and find said ladle, and to make inquiries for same of persons in the lower part of said mill, without giving him any warning whatever as to the unsafe and dangerous condition of said set screw.' Pleas of not guilty and of the plaintiff's sole and contributory negligence were filed. The question to be determined is whether the plaintiff so contributed to the proximate cause of the injury as to preclude a recovery by him.

A verdict should be set aside when it clearly appears to be contrary to law. Where contributory negligence prevents recovery, and it clearly appears from the evidence that the negligence of the plaintiff so contributed proximately to the injury complained of that it would not have occurred but for the plaintiff's negligence, a verdict awarding damages should be set aside. Where contributory negligence is a complete defense, a minor may be guilty of such contributory negligence as will bar a recovery by him where his age, intelligence, and experience, and the surrounding circumstances render him capable of appreciating and avoiding obvious dangers.

At common law a plaintiff could not recover for injuries to himself caused by the negligence of another if he in any appreciable way contributed to the proximate cause of the injury upon the theory that there is no apportionment of the results of mutual negligence. Where both plaintiff and defendant are at fault, the law does not in general interfere. The common-law rule that there can be no recovery by those guilty of contributory negligence has not been changed by statute in this state except in certain cases of injuries by the operation of rairoads. Stearns & Culver Lumber Co. v. Fowler, 58 Fla. 362, 50 So. 680; Atlantic Coast Line R. Co. v. McCormick, 59 Fla. 121, 52 So. 712; Florida R. Co. v. Dorsey, 59 Fla. ----, 52 So. 963.

It is the duty of the master to use due diligence in providing a reasonably safe place for the servant to work in, and also to inform the servant of any dangers in the employment that are not of such a character that the servant should know of them, and to warn young and inexperienced employés of dangers in their employment as to which they have no knowledge or appreciation. A failure in the performance of these duties renders the master liable in damages for injuries proximately resulting from such breach of duty, where the servant has not so contributed appreciably and proximately to his own injury as to be guilty of contributory negligence. James v. Rapides Lumber Co., 50 La. Ann. 717, 23 So. 469, 44 L. R. A. 33, and notes; 10 Current Law, 731; Bare v. Crane Creek Coal & Coke Co., 61 W.Va. 28, 55 S.E. 907, 8 L. R. A. (N. S.) 284, 123 Am. St. Rep. 966, and notes; Burnside v. Peterson, 43 Colo. 382, 96 P. 256, 17 L. R. A. (N. S.) 76; Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S.E. 869, 70 L. R. A. 999; Camp v. Hall, 39 Fla. 535, 22 So. 792. If a servant fails to exercise ordinary care for his safety, he cannnot in general recover damages for an injury. Green v. Sansom, 41 Fla. 94, 25 So. 332.

Where dangers are obvious and the servant is capabel of appreciating them, a warning as to such dangers by the master is unnecessary. 10 Current Law, 753. Whether warnign is necessary depends upon the age, capacity, intelligence, and experience of the employé as well as upon the nature of the danger and the surrounding conditions and circumstances. Davis v. Augusta Factory, 92 Ga. 712, 18 S.E. 974; Ryan v. Armour, 166 Ill. 568, 47 N.E. 60; Mackin v. Alaska Refrigerator Co., 100 Mich. 276, 58 N.W. 999; Williams v. Churchill, 137 Mass. 243, 50 Am. Rep 304; Bollington v. Louisville & N. R. Co., 125 Ky. 186, 100 S.W. 850, 8 L. R. A. (N. S.) 1045; Noden v. Verlenden Bros., 211 Pa. 135, 60 A. 505, 3 Am. & Eng. Ann. Cas. 367, and notes; Mundhenke v. Oregon City Mfg. Co., 47 Or. 127, 81 P. 977, 1 L. R. A. (N. S.) 278, and notes; ...