Wilson & Toomer Fertilizer Company, a Corporation, Plaintiff in Error, v. Nora Lee, Defendant in Error, 90 Fla. 632

Terrell, J. About five o’clock June 6, 1921, W. F. Lee, aged thirty-four, while in the employ of Wilson & Toomer Fertilizer Company erecting a warehouse, was struck by an A Frame Derrick, fell from an elevated scaffold striking head first on the floor twenty-two 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 twenty-two feet and six inches tall, seven foot base made of 2x6’s with 2x8 base. Nora Lee, the widow of the deceased F. F. Lee, brought an action claiming damages in the sum of $100,000.00.

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 the defendant was denied. The jury found for the plaintiff in the sum of $15,000.00, 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 frame work 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 derirck from time to time, that it had been moved about twenty-five 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 Matox 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: ‘ ‘ The men below pulled on -this rope, pulled this timber up to the scaffold, about twelve inches above the scaffold, which they hollered to us to land. # * * I told Mr.

Lee to take that end over there and place it, so he took his end and put it down and stooped down, holding it. * * * 1 was standing with one foot on the scaffold where I was going to land the timber and the other on the scaffold where the ‘A’ frame was standing, and just as I went to pull my end of the timber out of the way to get it in line, that is, so they could slack the rope and let it down, I felt this derrick move with my left hand, and I hollered to Mr.

Lee and all the rest to ‘Look out,’ and I turned loose the timber and jumped behind the derrick * * * and I ran behind it and the derrick raised up, and as it did, it caught him in the waist line and slung him loose so that he fell. ’ ’ 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 blue print or horizontal projection marked “B”: As shown by the testimony the derrick was resting on a scaffold twenty-two feet above the first floor of the building being constructed. It consisted of an “A” frame twenty-two feet, six inches high coming to a point at the top and having a base of seven 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.) Prom 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 snatch block attached to a support below partly in front of and partly to one side of thé “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 five 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 “Eesultant” has been drawn so as to pass at the end of the base of the “A” frame at which point the structure is then in equilibrium.

A horizontal thrust of thirteen pounds in addition to that shown in figure 2 in a direction parallel with the base toward “N” placed the “A” frame in equilibrium about the point “N.” A thrust as above in excess of thirteen pounds would cause it to overturn.

From the foregoing analysis represented by figures 1, 2 and 3, the conclusion is inevitable that a pull upon the hoisting line tended-to overturn the “A” frame, that the weight of the “A” frame plus the weight of the suspended timber tended to stabilize the “A” frame, that the pull on the hoisting line opposed to the weight of the “A” frame plus that of the suspended timber brought the “A” frame into a condition approaching overturning, and that when the two men undertook to swing the suspended timber to one side a horizontal thrust in the direction of “N” was exerted upon the “A” frame at its apex, and when this force exceeded thirteen pounds it overturned.

It is therefore readily seen that when the resultant of forces acting on the “A” frame passed outside or to the left of its base, it immediately tilted about the point “N, ” that the lifting of the opposite leg left it free to revolve about the other leg at “N” which it did in seeking to readjust its center of gravity, finally overbalancing and simultaneously toppling sidewise and revolving horizontally.

Thus the analysis and behavior of the “A” frame by reason of its manner of support, the direction of pull on the hoisting line and resisting forces are in exact harmony with what the undisputed testimony shows took place. As already suggested, plaintiff alleges negligence on the ground that there should have been three guy ropes supporting the derrick instead of two, and that the base of the derrick or “A” frame should have been longer.

Defendant meets these charges of negligence with the counter charge that the hoisting line was attached to one side by fellow servants of deceased, that deceased assumed all' responsibility for such acts on the part of fellow servants and that deceased was possessed of equal knowledge with defendant of any danger or defect in said “A” frame.

From what has been said about the “A.” frame it is perfectly apparent that it would not have overturned if it had been supported by three guys properly anchored, or if its base had been longer or securely attached, or if the hoisting line had been placed in a vertical plane passing through the guy line and through the center of the “A” frame. Failure to observe this principle in placing the hoisting line was primarily responsible for its overturning.

It is also apparent that the “A”.frame would have been safe so long as the hosting line was placed in a vertical plane passing through the guy line and through the center of said “A” frame, but placed in any other position this factor or element of safety was reduced and the farther it was placed from the vertical plane as here indicated, the greater the danger became.

To uphold the contention of plaintiff in error is equivalent to holding that the deceased had knowledge of the physical condition and structure of the “A” frame and the danger attending its use as constructed or that he understood fully what would likely be the resultant and outcome of the forces applied to it as here outlined, that it had a very narrow area of safety, but that he assumed all risks incident thereto. We do not think such a holding is warranted by the record.

There is no evidence tending to show that the deceased had knowledge of or was forewarned as to the limited area of safety of the “A” frame, the danger attending its use, or that he understood what would likely be its behavior or the resultant and outcome of forces when applied to it in the manner as shown by the testimony.

The “A” frame was constructed by direction of the foreman on the job some two weeks before the accident, and there is evidence to the effect that its construction was in line with* the practice for such construction prevailing in the community, but against this we are confronted with the irresistible fact of its very limited area of safety and behavior on the application of forces as shown, which area of safety could have been materially enlarged by lengthening the base, securing the base to the scaffold or properly fastening with an additional guy.

In the light of the showing made by tire whole record we are brought to the conclusion that the “A” frame in question as constructed had a factor of safety below that of common practice, that it was an unsafe appliance or implement, to work with, that reasonable precaution was not exercised to safeguard the life of the deceased and that it does not appear that he knew of or appreciated the danger to which he was subjected, or that such danger -was so obvious that, an ordinarily prudent man under the circumstances would, have appreciated it.

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. The Supreme Court of the United States in Gila. Valley, G. & N. R. Co. v. Hall, 232 U. S. 94, 34 Sup. Ct..

Rep. 229, upheld a charge embodying this principle of law, the pertinent part of the opinion being as follows: “An employee assumes the risk of dangers normally incident to* the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence.

But the employee has a right to assume that his employer has-exercised proper care with respect to providing a safe place* to work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a.. defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it.

Moreover, in order to charge an employee with the assumption of risk attributable to a defect due to the emploj'er’s negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it. Union Pacific Railway Co. v. O’Brien, 161 U. S. 451, 457; Texas & Pacific Railway v. Archibald, 179 U. S. 665, 671; Choctaw, Oklahoma, &c. R. R. Co. v. McDade, 191 U. S. 64, 68; Texas & Pacific Ry. Co. v. Swearingen, 196 U.

S. 51, 62; Burns v. Delaware & Atlantic Telegraph Co., 70 N. J. Law, 745, 752.” The fellow servant rule was first announced in this country by the Supreme Court of South Carolina in 1841 in Murray v. S. C. Rail Road Company, 1 McMullan (S. C.) 385, and was affirmed by the Supreme Court of Massachusetts the following year in Farwell v. Boston & Worcester Rail Road Corporation, 4 Met. (Mass.) 49. Priestly v.

Fowler, 3 M. & W. 1, decided in England in 1837 is often cited as the first case declaring the rule, but this case did not directly involve the question of the liability of the master to a servant for the negligence of the fellow servant. It does not appear that Priestly v. Fowler was called to the attention of the South Carolina court, though both Priestly v. Fowler and Murray v. S. C. Rail Road Company were referred to by the Massachusetts court.

The South Carolina and Massachusetts cases have greatly influenced the course of decisions on this question both in our country and in England, but so far as we have been able to learn from an exhaustive search all hold that 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 mployer’s negligence in making such provision.

It is true that a servant who continues without objection in his master’s employ with knowledge of a defective appartus assumes 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. We understand the doctrine of assumption of risk to extend only to those risks and hazards ordinarily and ■usually incident to the employment voluntarily engaged in, that is to say risks such as he knows to exist, or may know to exist by ordinary care. It does not extend to risks created by the negligent act of the master.

In Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. Rep. 494, it was said that 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. Westbrook v.

Crowdus (Tex. Civ. App.), 58 S. W. Rep. 195, was a derrick case similar in many respects to the case at bar, and it was there held.that where there was no evidence that a servant had any notice that a derrick was defective, or of the danger attending its use, a finding in an action against a master for injuries received by its fall, that the manner of its construction and the danger attending its use were as apparent to the servant at the time it fell, and prior thereto, as to defendant, is erroneous. It was also held in Westbrook v.

Crowdus that where a derrick was erected by experienced men, but was thereafter removed, under direction of the master by inexperienced workmen, and the master made no inspection to see whether it had been properly erected after removal, he was guilty of such negligence as rendered him liable to a servant for injuries received by its fall. Gulf, C. & S. F. Ry. Co. v. Delaney, 22 Tex. Civ. App. 427, 55 S. W.

Rep. 538, is another derrick case where a. brakeman on a freight train was killed by the falling of two derricks placed on each side of the track and used by an independent contractor to unload heavy stones from the cars on the track. The derricks were fastened together by overhead wires and were kept in position by guy ropes fastened to fence posts, one of which was decayed. The fall of the derricks was caused by the breaking and pulling up of such posts. The court held the railroad company negligent. We think the case at bar may safely rest on the authority of Westbrook v. Crowdus, and Gulf, C. & S. F. Ry.

Co. v. Delaney, as there is no evidence showing that the deceased was advised, knew or appreciated the danger attending the use of the derrick as constructed which caused his death, and the record conclusively shows that the defendant was negligent in that it failed to see that the derrick or “A” frame was securely anchored when it was moved from place to place, including the place from which it fell.

As stated from another angle, we think the master was charged with knowledge of the narrow margin of safety of the derrick as constructed, and the danger attending its: use, which danger and narrow margin of safety it was his duty to communicate to the deceased. It is ‘not made to appear that this was done, while it affirmatively appears that little or no precaution was used to safely anchor the derrick when it was moved in order to reduce the danger attending its use.

The theory upon which contributory negligence is held to preclude one from recovery in an action of this kind is that he was guilty of some imprudence in the premises and that this imprudence was partially or entirely the carrse of the injury received. We find nothing in the record to support the defense of contributory negligence interposed in this ease.

All who serve the same master, work under the same control, derive authority and compensation from the same common source, are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants who take the risk of each other’s negligence, and the master is not bound to indemnify one servant for injuries catised by the negligence of another servant in the same common employment as himself unless the negligent servant was the master’s representative. Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 South. Rep. 552; Prairie Pebble Phosphate Co. v.

Taylor, 64 Fla. 403, 60 South. Rep. 114; South Florida R. Co. v. Weese, 32 Fla. 212, 13 South. Rep. 436. Defendant invokes the foregoing or fellow servant rule as a defense here on the ground that the hoisting line or snatch block was placed by fellow servants of deceased in front of and to one side of the “A” frame, and its failure was primarily due to this fact.

The statement of fact as carried in this defense is doubtless true; but the answer is that the master was negligent in furnishing the deceased with an implement to work with of such narrow margin of safety and not advising him of the danger incident to its use, or in not seeing to it that the hoisting line was at all times placed within the area of safety as already described in this opinion. The questions raised in this case have been very thoroughly presented both at the bar and in brief by counsel for both sides.

Many errors were assigned, all of which have been examined carefully, but on the whole record reversible error does not appeal’. The judgment of the court below is therefore affirmed. Whitfield, P. J., and West, J., concur. Taylor, C. J., concurs in the opinion. Ellis and Browne, J. J., dissent.