Wilson & Toomer Fertilizer Co. v. Lee
| Decision Date | 04 December 1924 |
| Citation | 106 So. 462,90 Fla. 632 |
| Parties | WILSON & TOOMER FERTILIZER CO. v. LEE. |
| Court | Florida Supreme Court |
Rehearing Granted Feb. 17, 1925.
Judgment Reaffirmed Dec. 1, 1925.
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by Nora Lee against the Wilson & Toomer Fertilizer Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
On Rehearing.
Syllabus by the Court
Risks from defective appliances not assumed unless dangers realized. An employee is not charged by law with the assumption of a risk arising out of defective appliances provided by his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the dangers incident to the use of such appliances.
Risk of master's negligence in providing appliances not assumed. The servant has a right to assume that the master has used due diligence in providing suitable appliances or implements for the operation of his business, and does not assume the risk of the employer's negligence in making such provision.
Risk assumed by servant, continuing work with knowledge of defect assumption of risk a question for jury. A servant who continues without objection in his master's employ, with knowledge of a defective apparatus, assumed the hazard incident thereto, but, unless the evidence clearly shows the assumption of the risk, it is a matter properly left to the determination of the jury.
Assumption of risk distinguished from contributory negligence. Assumption of risk is a matter of contract. Contributory negligence is a question of conduct. If a servant would be defeated of a right of recovery for an injury by the rule of assumed risk, it would be because he agreed, long before the accident happened, that he would assume the very risk from which his injury arose. If he were to be defeated by the rule of contributory negligence, it would be because his conduct at the time of the accident, and under all the attendant circumstances, fell short of ordinary care.
Derrick held unsafe implement, rendering employer liable for failure to warn servant. A derrick constructed with so narrow a margin of safety as the one in this case is an unsafe implement to work with, and the master furnishing it to a servant is charged with knowledge thereof, and the danger attending its use. Failure to communicate such knowledge to the servant renders the master guilty of such negligence as makes him liable to the servant in damages.
Master's duty to furnish servant reasonably safe place and tools continuing one. The duty of the master to furnish a reasonably safe place in which to work and reasonably safe and proper tools and appliances to work with is a continuing one. He cannot, in the beginning, furnish a safe place to work or tools to work with and later take them away, and by his action or otherwise substitute new or different ones that are unsafe and then escape liability, unless it be shown that the act of the servant was responsible.
Rule prohibiting testimony as to subsequent repairs held not applicable to cross-examination testing credibility of witness. The rule prohibiting the introduction of testimony as to subsequent repairs of machinery, appliances, places to work, and tools to work with, in personal injury suits applies generally to substantive evidence of such repairs. It is not applicable to evidence testing the credibility of a witness under the facts in this case.
Marks, Marks & Holt, of Jacksonville, for plaintiff in error.
Kent & Dewell, of Jacksonville, for defendant in error.
About 5 o'clock June 6, 1921, W. F. Lee, aged 34, while in the employ of Wilson & Toomer Fertilizer Company, erecting a warehouse, was struck by a frame derrick, fell from an elevated scaffold, striking head first on the floor 22 feet below, and as a result of the fall was instantly killed.
The derrick was rigged on the scaffold from which Lee fell, and was 22 feet and 6 inches tall, 7-foot base, made of 2x6's with 2x8 base.
Nora Lee, the widow of the deceased, W. F. Lee, brought an action claiming damages in the sum of $100,000. The second count of the declaration alleges negligence in that the derrick was equipped with only two guy ropes when it should have been equipped with three, while the third count alleges negligence in that the derrick was improperly constructed, having insufficient base projection beyond the uprights, making it an unsafe appliance to work with. The first and fourth counts were eliminated.
To these allegations of negligence, in addition to the general issue, the defendant, Wilson & Toomer Fertilizer Company, pleaded contributory negligence of the deceased, negligence on the part of fellow servants of the deceased, and assumption of risk.
At the conclusion of plaintiff's testimony, motion for an instructed verdict in favor of defendant was denied. The jury found for the plaintiff in the sum of $15,000, a new trial was denied, final judgment was entered on the verdict, and writ of error was taken.
The evidence is without material conflict as to the foregoing facts and the further fact that the deceased had been working for the defendant as a carpenter about three weeks in what was called the rigging gang, which had charge of the hoisting and placing of new timbers necessary to complete the upper framework of the structure. The derrick in question was used for this purpose, and was constructed about two weeks prior to the accident by two carpenters on the job under direction of the foreman Crews.
The evidence further shows that Lee assisted in moving the derrick from time to time; that it had been moved about 25 minutes prior to the accident; that Lee and Burris were the only men on the scaffold at the time of the accident; that when first constructed the derrick was anchored by three guy ropes, but at the time of the accident, and for several days prior thereto, it was anchored with only two guy ropes; that the derrick was not secured in any manner except by the two guys; that it fell when lifting the first timber after it had been placed in that position; that there was a side strain on the derrick on account of the location of the snatch block or hoisting line; that on previous occasions the derrick had raised slightly on one foot; and that one Mattox was the leader of the rigging gang.
The witness Burris, who was on the scaffold with Lee at the time, described the accident substantially as follows:
A drawing of the derrick and scaffold on which it was placed at the time of the accident was filed as evidence and made part of the record here. For the purpose of analyzing and showing its behavior, we deduce from this drawing the following blueprint or horizontal projection marked 'B':
(Image Omitted)
As shown by the testimony, the derrick was resting on a scaffold 22 feet above the first floor of the building being constructed. It consisted of an A frame 22 feet, 6 inches high, coming to a point at the top and having a base of 7 feet. The A frame was supported by one guy line passing from its top in a plane at right angles to the base and in a direction backward or toward the slope of the A Frame. (The guy line in front of the A frame in the direction away from its slope had no influence on its failure or overturning and is omitted.) From the top of the A frame was rigged a two-part line--one end of which was fastened at its apex, and the other end passed downward through a pulley attached to the weight, thence upward through a pulley at the top of the A frame, thence to a pulley or statch block attached to a support below partly in front of and partly to one side of the A frame. This pulley fixed the direction of the 'pull' upon the A frame and provided a change in direction for affording a favorable purchase for the 5 men working at the power end of the line.
By application of well-known natural or mechanical laws, Figure 1 of B shows that neglecting a negligible increment, 1, for overcoming inertia and ignoring friction) the result of a pull of 375 pounds on the hoisting line to raise a weight of 750 pounds by a two-part line produced a horizontal thrust of 150 pounds at the top of the A frame, tending to overturn same in a direction parallel with its base.
Figure 2 of B shows the direction of the 'resultant' of the weight of the suspended timber, 750 pounds estimated, plus the weight of the A frame, 250 pounds estimated. In hoisting the timber the resultant force therefrom passed through the base of the A frame at the point N. Attention is directed to the fact that N is very near the end of the base, and that the resultant is nearly at its critical angle.
Figure 3 of B is the same as Figure 2. Except the resultant has been drawn so as to pass at the end of the base of the A frame at which...
To continue reading
Request your trial
-
Nelson v. Union Wire Rope Corp.
...the condition which creates the peril.' (See also: City of Williston v. Cribbs (Fla.1955), 82 So.2d 150; Wilson & Toomer Fertilizer Co. v. Lee (1925), 90 Fla. 632, 106 So. 462, 465-466; Gallespie v. Thornton (1927), 95 Fla. 5, 117 So. 714, 717.) Here, there was neither pleading nor proof th......
-
Hartman v. Opelika Mach. and Welding Co., TT-50
...before us: First, inquiry as to subsequent repairs is permissible on cross-examination to test credibility. Wilson & Toomer Fertilizer v. Lee, 90 Fla. 632, 106 So. 462 (1925). Second, evidence of subsequent repairs can be used in rebuttal if the opposing party "opens the door." Hethcoat v. ......
-
Crenshaw Bros. Produce Co., Inc. v. Harper
... ... 4 Metc., Mass., 49, 38 Am.Dec. 339. As was said by this ... court in Wilson & Toomer Fertilizer Co. v. Lee, 90 ... Fla. 632, 106 So. 462, 466: The case of 'Priestley v ... ...
-
Deane v. Johnston
...obviously did, that the conduct of appellee at the time of the accident did not fall short of ordinary care. Wilson & Toomer Fertilizer Co. v. Lee, 90 Fla. 632, 106 So. 462, 466. The question of contributory negligence was properly submitted to the jury for its determination. Consequently, ......
-
Resurrection of a dead remedy: bringing common law negligence back into employment law.
...Swanson v. Miami Home Milk Producers' Ass'n, 157 So. 415, 416 (Fla. 1934). (234.) Id. (235.) Wilson & Toomer Fertilizer Co. v. Lee, 106 So. 462, 466 (Fla. (236.) Id. (237.) Id. (238.) Scott v. Norman, 391 S.W.2d 890, 895 (Mo. 1965). (239.) Parker v. Highland Park, Inc., 565 S.W.2d 512, ......