Green v. Sansom

• Decision Date: 31 January 1899
• Parties: GREEN et al. v. SANSOM.
• Court: Florida Supreme Court

25 So. 332

41 Fla. 94

GREEN et al. v. SANSOM.

Florida Supreme Court

January 31, 1899

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Action of Richard A. Sansom against W. C. Green and J. J. Green partners under the name of W. C. Green Company. Judgment for plaintiff. Defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. The pleading, the form of which is prescribed by section 33, c 1096, Acts 1861 (section 1055, Rev. St.), is in the nature of a general replication de injuria, enabling a party in a compendious manner to traverse all those allegations in a plea which he could have traversed before the enactment of these provisions, but all matters which before the act must have been replied specially must still be so replied.

2. The statutory general replication prescribed by section 33, c 1096, Acts 1861 (section 1055, Rev. St.), is properly pleaded to the plea of not guilty, special pleas denying specific allegations of the declaration, and a plea alleging that plaintiff's alleged injuries were caused by his own negligence, and not otherwise, in actions for damages alleged to have been caused by defendant's negligence.

3. An assignment of error based upon a general exception to several instructions asserting distinct propositions of law, one or more of which is correct, will be overruled.

4. Where the servant of an independent contractor is sent to do a certain piece of work for the employer of such contractor and from the time such servant sets to work the employer assumes and exercises control over him and the work performed by him, directing and controlling him as to the methods and details by which the desired result is to be accomplished, the relation of master and servant is thereby constituted between the employer and such servant.

5. Where the employer undertakes to furnish his own employés, or those of an independent contractor, some of the implements or instrumentalities for executing the required work, he thereby assumes a duty to exercise ordinary and reasonable care, measured by the surrounding circumstances, to provide such implements and instrumentalities as will be reasonably safe and suitable.

6. A master is not to be held liable as an insurer of the safety of his employés, or as a warrantor of the instrumentalities and implements furnished by him to enable his servants to accomplish his work, but the law obliges him to exercise such ordinary and reasonable care as prudence and the exigencies of the situation require, in providing the servant with safe machinery and suitable instrumentalities for his work, and if this obligation be performed the law absolves him from all liability for defects therein.

7. The servant owes a duty to his master to exercise ordinary care for his own safety, and while he has a right to presume that his master has performed his duty, and is not, therefore, ordinarily bound to discover latent defects in the instrumentalities furnished him, yet he must notice all those patent and obvious defects which the exercise of ordinary care would enable him to discover; otherwise his own negligence will contribute to his injury and prevent his recovery.

8. Where the master requires his servant to select for his use, in executing a particular work, a rope from a number of ropes at the servant's command, and the servant, in making such selection, selects one which is apparently sound and sufficient for the intended purpose, but which in fact is defective, and the master knows, or by the exercise of ordinary and reasonable care ought to know, of the defect, he will be liable for the injury to his servant resulting from such defect; but, if the servant selects a rope obviously and patently unsound or unsuitable for the desired purpose, he will not be exercising the care required of him, and his master will not be liable.

9. Unless the circumstances attending an accident show that it could not have happened if ordinary care had been used by the master, the happening of an accident does not raise a presumption of negligence on the part of the master in actions between master and servant, in cases other than those provided for by chapter 4071, Acts 1891.

10. In actions by servants against their masters for injuries occasioned by defects in the instrumentalities furnished by the master, to authorize a finding that the master has been negligent it must be shown that the defect was known to the master prior to the accident, or that in the exercise of ordinary and reasonable care he ought to have known it, as that the defect was one which a reasonable and proper test or inspection would have disclosed, and that ordinary and reasonable care required such test or inspection to be made.

COUNSEL

Walker & L'Engle and R. H. Liggett, for plaintiffs in error.

Cromwell Gibbons and J. N. Stripling, for defendant in error.

OPINION

CARTER J.

Defendant in error sued plaintiffs in error in the circuit court of Duval county, claiming damages for personal injuries alleged to have been caused by negligence. The defendants, as contractors, were constructing a public building for the United States in the city of Jacksonville, and were required by the government superintendent of construction to test the plumbing therein before its acceptance. They employed one J. E. Kuchler to make the test, who sent the plaintiff, one of his employés, to do the work. Defendants claimed that Kuchler was an independent contractor; that they contracted with him to do the work according to his own methods, reserving no authority or control over him, or the execution of the work, other than that it was to be satisfactory to the superintendent of construction. There was evidence that plaintiff was sent by Kuchler to do whatever work, and in such manner, as defendants might require; that he was occupied in the work four or five days prior to the injury complained of, during which time he worked under the exclusive supervision and control of one of defendants, performing various duties connected with testing the plumbing, repairing leaks therein according to specific directions given by defendants, in accordance with details and methods of doing the work prescribed by them, and that during this entire period Kuchler was at the building only four or five times, remaining from five to ten minutes only, giving no instructions in regard to the work whatever, but merely inquiring how plaintiff was getting along. Plaintiff's injury is alleged to have occurred in consequence of the breaking of a rope used in constructing a hoistaway by which he was elevated into the tower of the building to repair a leak in a water pipe about 50 feet from the floor. There was evidence tending to prove that about the time this leak was discovered Kuchler and one of the defendants were present, and both said it would have to be repaired. Kuchler said to plaintiff, in Green's presence: 'Mr. Green says there are a plenty of ropes here, and you can rig up a hoistaway.' When plaintiff was ready to go up in the tower, Mike Howard, an employé of defendants, brought a large rope, which plaintiff rigged through a pulley at the top of the tower. Howard then brought a board with a smaller rope attached. Plaintiff saw that the small rope had been used considerably, but could not tell how long. He took it for granted that the rope was 'all right.' He made some remark about it when he began to tie it to the larger one, and Howard said: 'Oh, that rope is all right.' Plaintiff made the small rope fast to the larger one, and was hoisted up to examine the leak, which took him about five minutes, and was then let down. After dinner plaintiff sent his assistant (employed by Kuchler) overhead with material, and plaintiff was again hoisted into the tower by two of defendants' servants. A bucket of melted lead was lowered by the assistant from the floor above. Plaintiff caught the rope above the bucket, and was in the act of pouring the lead in the leaking joint, when the smaller rope suspending the hoistaway broke, causing plaintiff to fall several feet, and the melted lead to spill in one of his eyes, and upon his head and face. Plaintiff succeeded in catching the larger rope, and was lowered to the floor. On the morning when plaintiff went to work, Kuchler told him where he could get some tools and expansion plugs to work with, but during the progress of the work defendants furnished some wooden plugs and plaster of Paris for use by plaintiff. Defendants admitted that, when Kuchler first came to work, they gave him carte blanche to use anything about the building when he might need it. There were several ropes and hoistaways lying about the building when plaintiff constructed the contrivance used by him, but the size or character of these ropes, or the condition of the hoistaways, is not shown. The evidence tended to show that the ropes used by plaintiff were apparently sound and sufficient for the uses to which they were put, but that ropes of that character will, after being in use awhile, turn dark, and, after being exposed or used a long time, rot; that there is no difference in the appearance of a rotten rope of this character and a sound one that has been used; that the only way to ascertain when a rope of this character that has been in use a long time is sound is to test it; that a test is not always safe, because it will frequently weaken, without breaking, the rope, so that it will afterwards break under a less pressure. Plaintiff did not test the ropes before using them. How long these particular ropes had been in use is not shown, but defendants admitted that the ropes in the building had been in use from six months to two years. The jury rendered a verdict for plaintiff, defendants' motion for a new trial was...