Wauchula Mfg. & Timber Co. v. Jackson

• Decision Date: 05 January 1916
• Court: Florida Supreme Court
• Parties: WAUCHULA MFG. & TIMBER CO. v. JACKSON.

70 So. 599

70 Fla. 596

WAUCHULA MFG. & TIMBER CO. v. JACKSON.

Florida Supreme Court

January 5, 1916

Error to Circuit Court, De Soto County; F. A. Whitney, Judge.

Action by William D. Jackson against the Wauchula Manufacturing &amp Timber Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

Syllabus by the Court

SYLLABUS

A verdict should be set aside when it clearly appears to be contrary to law.

Where contributory negligence prevents recovery, and it clearly appears from the evidence that the negligence of the plaintiff so contributed proximately to the injury complained of that it would not have occurred but for the plaintiff's negligence, a verdict awarding damages should be set aside.

At common law a plaintiff could not recover for injuries to himself caused by the negligence of another, if he in any appreciable way contributed to the proximate cause of the injury, upon the theory that there is no apportionment of the results of mutual negligence.

If a servant fails to exercise ordinary care for his safety, he cannot in general recover damages for an injury.

Where dangers are obvious, and the servant is capable of appreciating them, a warning as to such dangers by the master is unnecessary.

COUNSEL A. G. Turner, of Tampa (P. O. Knight, of Tampa of counsel), for plaintiff in error.

Lee M Hammel, of Wauchula, and H. S. Phillips and H. S. Hampton, both of Tampa, for defendant in error.

OPINION

SHACKLEFORD J.

William D. Jackson brought an action against the Wauchula Manufacturing & Timber Company, a corporation, to recover damages for personal injuries, alleged to have been received by the plaintiff by reason of the negligence of the defendant. A trial was had before a jury, which resulted in a verdict in favor of the plaintiff for the sum of $3,500. The defendant seeks to have the judgment entered thereon reviewed and tested here by writ of error.

The original declaration consisted of one count which was amended by leave of court, and afterwards the plaintiff added a second count. The defendant interposed a demurrer to the declaration whereby the sufficiency of each count was questioned, which demurrer was overruled, and such ruling forms the basis for one of the assignments. The defendant then filed several pleas, and the issues thereby made were submitted to the jury for determination, with the result as above stated. Several errors are assigned, but we see no useful purpose to be accomplished by treating them in detail. One of such assignments is based upon the overruling of the motion for a new trial, which questions the sufficiency of the evidence to support the verdict under the principles of law applicable to such evidence. In other words, it is contended by the defendant:

'That there is no presumption in favor of the verdict as rendered by the jury in this case, even though this verdict has been sanctioned by the refusal of the trial court to set it aside, because it is a question of law, and not a question of fact, as to whether or not, under the law, the plaintiff has a right to recover upon the testimony given at the trial.'

In order to determine the correctness of this contention it is necessary to ascertain just what facts were established by the evidence adduced at the trial. We have given all of the evidence our careful examination, and are of the opinion that the following facts are clearly established.

At the time of the injury the plaintiff was employed by the defendant in the capacity of a carpenter, and had been in such employment for a period of about 2 weeks, the plaintiff being about 38 years of age, in good health, and had been a carpenter for 'something like 15 years,' during which time his work had required him 'to work on buildings and on scantlings and up in roofs of buildings.' On the morning that the injury occurred, the plaintiff, Lunie Vernon, and J. R. King, the latter being designated in the testimony as 'the foreman,' or 'boss man,' were all engaged in doing some work connected with the raising of a conveyor trough in the plant of the defendant corporation, which conveyor trough ran under a joist which had to be sawed off before such conveyor trough could be raised. The plaintiff himself testified as follows:

'I went to the mill that morning to resume my position as carpenter. When I got down there this morning, the chain that runs the hog that grinds up the fuel--we had just put in the machinery--they had it torn up, and the chain was too long, and so we worked some time at the hog. The fuel had blocked the hog, and had everything blocked, and Mr. King asked me to help get the hog fixed, and the chain, in order that they might get the trash out of the mill, and I told him, 'Very well.' We fixed the hog and got that in good shape, and I went up to the shaving house to work on the chain. It had torn up the studding, and we nailed that back, and cut a joist of the shaving house that ran across the top of this iron girder; and whilst I was in the house working at it Mr. Vernon had taken and sawed and cut loose this girder from the side of the house, a distance from the side of the house. After he got that cut loose, he went to work at something else; and Mr. King told me to get some nails and a machine hammer; and I went after it, and had to go beyond the mill about 175 yards; and when I came back he had cut this joist off, and I climbed up; and he called to me to hand up a piece of 2×4 to block up the through with; so there was a piece lying on the floor, and I picked it up, and handed it to him. Then I picked up the tools, and climbed up, and went up to the top. He was working out where he had cut this joist in two, and I taken the prize that I had been present when they started to prize up the box, and found everything split up; and when I came back Mr. King said, 'Go ahead and prize up the box;' and I got a 2×4 about 6 or 8 feet long and put it across this way (indicating), and I prized down until he said it was enough, and he said, 'You come across here and help Mr. Vernon; you can be cutting out a loop of this chain;' and I did this, and came back to the center of the house to straighten up to walk across; and I had to step from those joists, which was about 30 inches apart, just a good step; and when I started across Mr. King was sitting down right close to where Mr. Vernon was working, and he never said a word to me about the joist being cut; and I stepped on this joist in the center of the house, and fell down at least 15 feet; and it knocked me unconscious. I didn't know anything for a second or two, and I have been suffering ever since.'

The plaintiff further proceeded to testify in his own behalf that he received the injuries 'early in the morning, something like 8 o'clock, or hardly so late as that,' and stated, in response to a question as to what the condition at the place was with reference to the light, that they 'didn't have any light, except two or three doors next to the boilers; one door next to the house was the only door that gave any light at all.' The witness further stated that 'it was dark in there; you could see how to work, but if was considerable dark in there to work;' that when he stepped from one joist over to the other, a distance of about 30 inches, he did not know that the joist upon which he stepped was extending out without any support under it; that he did not notice that a piece had been cut out of such joist, which left an open space, stating that the joist 'had been cut on the other side and was resting on the box, but I didn't notice it was cut on this side,' and that neither Mr. Vernon nor Mr. King gave him any notice or warning in any way. On cross-examination, the plaintiff stated that he had been up on the rafters before on the morning that the injury occurred, had walked across from one girder to another, could see one girder from another, it was light enough to see how to work, that if one of those rafters had been out that morning he could have seen it when he was stepping across there, that he did not remember how long before the occurrence of the accident he had been up there, but it was 'something like 15 or 20 minutes.' The cross-examination of the plaintiff then proceeded as follows:

'Q. Mr. Jackson, you heard Mr. Vernon's testimony this morning. State whether or not Mr. King, in the presence of Mr. Vernon, explained to you and Mr. Vernon what he wanted done to that trough. A. Didn't tell me what he wanted done with it. Q. Were you present when he told Mr Vernon? A. No, sir; I didn't hear him tell him what to do with it. Mr. Vernon was the first one that told me, and Mr. King came by and said, 'You can help Mr. Vernon.' Q. Were you near Mr. Vernon at the time Mr. King explained to Mr. Vernon what he wanted done with that trough? A. I don't remember. I don't think I was. Q. You don't remember that at all? A. I don't remember hearing him tell Mr. Vernon what to do with it. Q. Do you remember Mr. King directing you at all what to do that morning? A. Yes, sir. Q. What did he say? A. Said, 'Go help Mr. Vernon,' and when we got in the shaving house told me to get a prize and prize up this iron box. Q. Prior to that time--just try to remember, if you can--isn't it a fact that Mr. King told you and Mr. Vernon both, talking to both of you, in the presence of each other, just exactly what he wanted done? A. No, sir; the only words that Mr. King told me was those--says, 'You go help Mr. Vernon.' He didn't tell me in the presence of Mr. Vernon. He was talking with Mr. Vernon, but I never understood what he said; only said: 'You go help Mr. Vernon. We have got to raise that box.' Q. Didn't tell you how to raise that box? A. No, sir; said, 'Prize up the box.' Q...