H. & C. Operating Co. v. Fossum
| Decision Date | 04 January 1937 |
| Parties | H & C OPERATING CO. v. FOSSUM. |
| Court | Florida Supreme Court |
On Rehearing Oct. 23, 1937.
Further Rehearing Denied November 27, 1937.
En Banc.
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
Action for personal injuries by Magnus Fossum against the H & C Operating Company. To review a judgment for plaintiff defendant brings error.
Affirmed.
On Rehearing.
COUNSEL McKay, Dixon & De Jarnette, of Miami, for plaintiff in error.
Hawthorne & Morehead and Estil H. Lanham, all of Miami, for defendant in error.
In 1934 the Miami Biltmore Hotel was being operated by the H & C Operating Company, a corporation. It employed Magnus Fossum on its night force in the kitchen and engineering room of the hotel. Fosum's duties required him to attend to the incineration of the garbage and the operation of the ice-cubing machine. Fossum worked from about 5:30 in the afternoon until about 7 o'clock in the morning.
The ice-cubing machine was of the type called the Blakeslee ice cuber, patented in 1908, and had been in use by the Hotel Company for many years. It consisted of a table with a metallic surface upon which was fixed a gang saw consisting of seven circular blades projecting about one and one-half inches above the surface of the table and some distance back from the front of it. At the end of the shaft to the left upon which the gang saws were fixed and about an inch and a half from the end of the table there was attached another saw called the cutoff saw, much larger in diameter than the gang saws, and which projected several inches above the level of the table. There was a shelf attached to the table which in the operation of cubing the ice raised and lowered as occasion required the use of the cutoff saw. Ice blocks weighing 100 pounds were first cut into four parts of 25 pounds each. In the process of cubing the ice a 25-pound block was placed on the table flat side down and the operator, by the use of a wooden guard, pushed the block of ice into the gang saws which cut parallel groves into the bottom of the ice about an inch and a half apart. When that process was completed, the block of ice was pulled back to the edge of the table at which the operator stood and was then truned 90 degrees and again pushed by the operator through the gang saws, thus cutting the ice block into squares about an inch and a half in length and width. The block of ice, upon being pulled back to the operator, was then lowered to the shelf, the surface of which was several inches lower than the surface of the table placed on edge, and then the operator pushed the block of ice into the cutoff saw, thus producing cubes of ice about an inch and a half in thickness.
Fossum was employed by the defendant company in January of 1934, and operated the machine for a period of about five and a half months when the accident which is the basis of this action occurred on the night of June 20, 1934. That night the Hotel Company was entertaining a convention of some kind and there was an unusual demand for the supply of ice cubes. The steward of the hotel whose business it was to keep a supply of the ice cubes flowing toward the kitchen and through it to the tables and rooms of the hotel for the accommodation of its guests urged Fossum by words and manner to speed up his work that an adequate supply of ice cubes might be furnished.
While pushing a 25 pound block of ice into the gang saws which were driven by an electric motor, the ice rocked unsteadily upon the table, so that Fossum placed his hand upon the top of the ice block to keep it steadily upon the surface of the table which he was unable to do with the wooden guard. In the act of pushing the block of ice into the gang saws, the ice rocked or tilted slightly, and Fossum's left hand slipped from the surface of the ice and was struck by the cutoff saw at the left edge of the table. His hand was so lacerated and mangled by the saw that amputation of the hand above the wrist became necessary.
He brought an action for damages for personal injuries against the H & C Operating Company, his employer. The declaration contained three counts. There was an amended first count to which a demurrer was interposed, as well as to the other two counts. The court withdrew from consideration the first and second counts and the parties went to trial upon the issues joined upon the third count.
The third count rests upon the theory that it was the duty of the plaintiff's employer to provide the plaintiff with a 'sound, safe and suitable' ice-cubing machine with which to cut the 25 pound blocks of ice into the cubes desired by the hotel, but that the defendant, not regarding its obligation in that behalf, supplied a defective and unsafe machine for that purpose, in that the saws of the machine which were unsed to cut the bottom surface of the ice into squares were dull; that the appliance provided for the raising and lowering of the shelf used to turn the block of ice into the cutoff saw was broken and defective so that the shelf remained at a level several inches lower than the surface of the table, thus exposing more of the periphery of the cutoff saw than would otherwise have been exposed in the process of cutting the ice by the gang saws; that, by reason of the condition of saws; that, by reason of the condition of appliance for raising and lowering the shelf, the machine became more dangerous to operate rapidly than would be the case if the machine had been in sound, safe, and suitable condition; that the defendant's foreman, notwithstanding the defective condition of the ice-cutting apparatus required the plaintiff by peremptory language to make greater haste in the cutting of cubes of ice than the defective condition of the machine reasonably permitted it to be used to that end.
The count alleges that, due to this combination of circumstances for which the defendant was responsible, the operation of the machine was more hazardous and attended by greater difficulties and dangers than would normally exist if the machine had been in good condition with sharp saws and a workable appliance for the raising and lowering of the shelf upon which the ice block was intended to rest in the process of cutting the squares from the bottom of the ice block; that, notwithstanding these defects in the machine, the defendant's foreman by peremptory and offensive language urged the plaintiff to greater speed in the cutting of ice cubes than the condition of the machine reasonably justified.
A demurrer to that count of the declaration was overruled, and the parties went to trial upon the pleas of not guilty, assumption of risk, and contributory negligence. At the conclusion of the plaintiff's evidence, the defendant moved for a directed verdict, which motion was overruled. The jury returned a verdict for the plaintiff in the sum of $20,000. The court, however, suggested a remittitur of $10,000, which was accepted by the plaintiff and judgment entered in that amount. To that judgment the defendant took a writ of error.
It is contended by the plaintiff in error that the evidence for the plaintiff showed that he assumed the risk of his employment and was guilty of contributory negligence and that the court should have therefore directed a verdict for the defendant.
An examination of the evidence does not reveal to us that the plaintiff was guilty of contributory negligence in the operation of the machine. It is true that in pushing the block of ice upon the gang saws he rested his hand upon the top of the block of ice from which his hand slipped and was struck by the cutoff saw to the left of the table.
It appears from the evidence, as we understand it, that the placing of one's hand upon the block of ice in the operation of pushing it into the gang saws was necessary to steady the ice upon the table as the ice was forced upon the gang saws. This was made necessary not only by the uneven surface of the block of ice due to the method of cutting the 100 pound blocks into squares of 25 pounds each, which was done by pick and chisel instead of by saw, thus leaving an uneven surface of the 25 pound block, but to the dull condition of the saws which broke and tore the ice into chips and flakes, hurling them into the operator's face, which required him to stand a little to one side in the act of pushing the block into the saws to avoid the flying particles of ice; that it was also necessary because of the greater speed with which the foreman required the plaintiff to operate the machine to supply the necessary amount of ice cubes.
The plaintiff had also been advised by others who operated the machine that the placing of his hand upon the top of the block of ice insured greater steadiness of the block as it passed through the gang saws; that the machine had been operated in that manner with a reasonable degree of safety with the exception of one or two instances of which the plaintiff was not advised in which the operator injured his left hand on the cutoff saw. These instances occurred during a period of nine or ten years during which that machine was operated.
In this state of case the placing by the plaintiff of his left hand upon the top of the block of ice which separated his hand from the gang saws by five or six inches was not an act of contributory negligence. This was not such an act or omission on the part of the plaintiff amounting to a want of ordinary care as in the circumstances would constitute the proximate cause of the injury. Plant Inv. Co. v. Cook (C.C.A.) 74 F. 503.
In the circumstances developed by this case it cannot reasonably be said that the plaintiff's act in placing his hand upon the top of the block of ice...
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