REYNOLDS-WEST LUMBER CO. v. Taylor

• Decision Date: 20 December 1927
• Docket Number: No. 5132.,5132.
• Citation: 23 F.2d 36
• Parties: REYNOLDS-WEST LUMBER CO. v. TAYLOR.
• Court: U.S. Court of Appeals — Fifth Circuit

23 F.2d 36 (1927)

REYNOLDS-WEST LUMBER CO. v. TAYLOR.

No. 5132.

Circuit Court of Appeals, Fifth Circuit.

December 20, 1927.

William H. Watkins, of Jackson, Miss. (Watkins, Watkins & Eager, of Jackson, Miss., on the brief), for plaintiff in error.

Paul Dees, of Philadelphia, Miss., and Marion W. Reily, of Meridian, Miss. (Reily & Parker, of Meridian, Miss., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the defendant in error to recover damages for personal injuries sustained while he was acting as an employee of the defendant in error. The parties are herein referred to by their designations in the trial court. The plaintiff's duties as an employee included feeding lumber to a molding machine and moving lumber to that machine from a rough shed over an elevated platform or dock, by means of a two-wheeled vehicle called a dolly or buggy. The plaintiff charged that he was injured as a result of a broken plank in the floor of the platform giving way under him as he was going from the molding machine towards the rough shed to get lumber to be fed to the machine, and that injury was caused by the defendant's negligence in failing to keep the passageway in safe condition. Evidence adduced tended to prove the following:

As plaintiff was going with another employee in the daytime from the molding machine to the rough shed to get lumber to be moved to such machine, he stepped on a broken plank in the floor of the platform with the result that he fell and four of his ribs were broken. The plaintiff saw that broken plank a couple of days before he stepped on it and fell. In going from the machine towards the rough shed, he momentarily forgot or was unmindful of that defect in the platform floor. Planks in that platform were frequently broken by loaded dollies moving over them. When a break occurred the defect could be quickly remedied by removing the broken plank and putting another plank in its place. The distance over the platform from the molding machine to the rough shed was about 40 steps. The width of the platform between the side the machine was on and the side the rough shed was on was about 40 feet. Plaintiff could have avoided danger from the broken plank by keeping away from it in going over the platform from the machine to the rough shed. The defendant excepted to the refusal of the court to direct the jury to find in favor of the defendant, and to give the following instruction requested by the defendant:

"You are instructed that, although you may believe that there was a defective plank in the platform, still, if you believe from the evidence that the plaintiff had a perfectly safe way of going to the dry shed without stepping on said plank, and that he unnecessarily walked over and upon said plank when he had a perfectly safe way to walk, and by which he could have avoided injury, you will return a verdict for the defendant."

The defendant excepted to the following part of the court's charge to the jury:

"In determining whether or not the defendant used reasonable care to maintain a reasonably safe place for the plaintiff to work, you should take into consideration the nature of the duties to be performed by the plaintiff for the defendant, and the different places he was required to go or be, and the condition of the way along which he would travel in passing...