Jacques v. Miami Ice & Cold Storage Co.

• Decision Date: 26 May 1917
• Citation: 75 So. 788,73 Fla. 1193
• Parties: JACQUES v. MIAMI ICE & COLD STORAGE CO.
• Court: Florida Supreme Court

75 So. 788

73 Fla. 1193

JACQUES v. MIAMI ICE & COLD STORAGE CO.

Florida Supreme Court

May 26, 1917

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Action by John L. Jacques against the Miami Ice & Cold Storage Company. Demurrer to declaration sustained, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where one is employed by another to repair or tear down a building or part of a structure, the timbers of which are decayed and their condition, although not apparent, is ascertainable by reasonable inspection, the employe assumes the risk of injury incident to the employment.

The doctrine that the master should provide his servant with a reasonably safe place to work has no application where the work for which the servant is employed is in its nature a dangerous employment and is rendered more so as the work progresses.

Where one is employed to tear down or repair a building, and the employer does not undertake to direct the employé as to how the work should be performed, but leaves that to the discretion of the employé, the latter should exercise reasonable precaution to ascertain the condition of the timbers and the existence of hidden dangers or defects in the structure, and cannot, in the case of injury sustained from falling timbers during the progress of the work caused by their rotten or decayed condition, hold his employer liable for negligence in not providing a safe place for his employé to work.

COUNSEL McCaskill & McCaskill, of Miami, for plaintiff in error.

Hudson Wolfd & Cason, of Miami, for defendant in error.

OPINION

ELLIS J.

The plaintiff in error brought an action in the circuit court for Dade county against the defendant in error for damages for personal injuries alleged to have been sustained by him while in the employment of the defendant. A demurrer to the declaration was sustained, and, the plaintiff below refusing to amend, there was judgment for the defendant, and the plaintiff took a writ of error.

The declaration alleges that in February, 1915, the plaintiff was employed by the defendant as a laborer, and was directed by the defendant to 'assist in tearing out a partition in and the ceiling' of a cold storage room, this work being a part of the plaintiff's duty as an employé of the defendant. The declaration describes how both the partition and ceiling were constructed. The partition was made by nailing sawn boards to two sides of upright pieces, the ceiling was constructed by nailing sawn boards to the top and bottom edges of overhead joists, the space between being filled with the husks and hulls of cocoanuts. The room was alleged to be 'damp and wet,' and the 'joists in a rotten, defective and dangerous condition.' It is alleged that, while the plaintiff was tearing up the sawn boards from the top edge of the overhead joists, they 'gave way, and all the ceiling fell to the floor below,' and the plaintiff was injured. When the accident occurred, the plaintiff and others, so the declaration alleges, were standing on the boards nailed to the upper edge of the joists. It is alleged that the ceiling fell because of the rotten, defective, and dangerous condition of the joists.

The theory of the declaration is that the principle that the master must provide his employé with a reasonably safe place to work applies, so the declaration alleges that the defendant did 'negligently, carelessly, and recklessly omit and refuse to use reasonable care, diligence, and precaution to furnish the plaintiff with a reasonably safe place in which to perform his work,' and negligently omitted to warn the plaintiff of the rotten condition of the joists. It is alleged that the plaintiff did not know of the rotten condition of the joists, and the same was not obvious to him, and that the defendant 'knew or ought to have known' of their condition and 'could have discovered said hidden defects by the exercise of reasonable inspection and precaution.' The defendant is charged with actionable negligence, in not providing a safe place for the plaintiff to work and in not notifying him of the rotten and defective condition of the ceiling joists. The injuries which the plaintiff sustained are set out in the declaration and the damages alleged to be $10,000.

The demurrer attacked the declaration upon several grounds. One is that, under the circumstances recited in the declaration the doctrine that the employer must provide a safe place in which his employé is to work does not apply; another, that the injuries sustained were the result of the ordinary risk incidental to the employment; and...