Kenan v. Walker

• Decision Date: 31 October 1936
• Citation: 127 Fla. 275,173 So. 836
• Parties: KENAN et al. v. WALKER.
• Court: Florida Supreme Court

173 So. 836

127 Fla. 275

KENAN et al. v. WALKER.

Florida Supreme Court, Division B.

October 31, 1936

Rehearing Denied April 19, 1937.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by L. W. Walker against William R. Kenan, Jr., and another as receivers of the Florida East Coast Railway Company. To review a judgment for plaintiff, defendants bring error.

Affirmed.

BROWN and TERRELL, JJ., dissenting.

On Rehearing.

COUNSEL

Robert H. Anderson, of Jacksonville, and Loftin Stocks & Calkins and John P. Stokes, all of Miami, for plaintiffs in error.

Peters & Kemp, of Miami, for defendant in error.

OPINION

PER CURIAM.

The writ of error in this case brings for review judgment in favor of plaintiff in a suit for personal injuries which are alleged to have occurred by reason of the plaintiff falling from the top of a ladder when the rung or step of the ladder upon which he was standing in the performance of his duties as an employee of the plaintiff became detached from the frame of the ladder on account of the nails which held the rung or step to the ladder having deteriorated and rusted away.

It is undisputed that the plaintiff was in the discharge of his duty as a laborer employed by the defendant. It is undisputed that the ladder had become defective by reason of the nails which held the top rung or step to the ladder to the sides of the ladder having become rusted and deteriorated and unfit to longer hold the rung or step in place.

The record shows that the ladder had been in use of several years on the inside of a water tank used on defendant's railroad to furnish water to engines at a point on the keys between Miami and Key West, Fla; that the rung or step of the ladder had been nailed to the sides of the ladder when same was made with common wire nails, not with galvanized nails that at times the water in the tank completely covered the ladder and at other times it did not cover it. The ladder was placed on inside of the tank for the purpose of being used by workmen going in and out of the tank to clean the tank and to repair it, and that on the occasion when this accident occurred the plaintiff was in the act of going into the tank to assist other workmen in cleaning it and caulking it.

There is some evidence that at the time when the accident occurred the plaintiff was in charge of the gang of workmen, in the absence of the foreman of that gang who temporarily a short distance away.

The record shows that the plaintiff was directed by the foreman of the gang to go into the tank, which required him to go down this particular ladder from the top of the tank, for the purpose of cleaning and caulking the tank.

The record also shows that it was a known fact amongst men of experience that where instrumentalities are constructed of wood fastened together with common nails, are subjected to being part time immersed and part time above the water, that the nails then more rapidly deteriorate, rust, and become useless than they will under other conditions.

The evidence also shows that the water used in the tank was treated chemically and that for that reason its deleterious effect on nails was quicker than would be that of ordinary fresh water.

The record also shows this instrumentality was used and remained in a place adjacent to the salt water and that the atmosphere adjacent to salt water will also detrimentally affect common wire nails.

The record further shows that there had been no reasonable inspection or test of the ladder or condition of the nails within a long period of time just prior to the injury to the plaintiff.

We can see no good purpose to be served in a lengthy discussion of the law applicable to this case. It is sufficient to say that this case is ruled by the law as stated by this court in the case of Fellsmere Sugar Co. v Marshall, filed November 4, 1935, reported 167 So. 649. And the question as to whether or not the defendant was negligent in not having used reasonable care to provide a safe place for the workman to work and a safe way for the workman to pass to and from the place where he was required to work was fairly...