Wilson & Toomer Fertilizer Co. v. Lee

The appliance with which the deceased and his follow workmen were engaged at the time of the accident was an "A" frame derrick. The deceased helped to put it in place. It was used for raising heavy timbers from the ground floor to a height of thirteen feet seven inches where they were to rest upon a scaffold preparatory to putting them in place.

The unsafety of the appliance, according to the statement of the majority opinion, consisted of three conditions: First, the insufficiency of the base of the derrick; second, the absence of a third guy rope; and third, the location of the snatch block.

According to the statement contained in the majority opinion the lack of a few inches in the scope of the derrick's base rendered the structure mechanically imperfect but not to such a degree that it would have been a dangerous or unsafe appliance if the workmen in placing it, among whom was the deceased, had not neglected to use a third guy rope or had not neglected to put the snatch block on the line of a plane at right angles to the center of the derrick's base.

The analysis of the derrick's movement, as made by the statement in the majority opinion, shows that the derrick tilted on one leg while the other swung around in the direction of Mr. Lee, knocking him from the scaffold on which he was standing. It is said this occurred because the angles of force when the timber was lifted to the required height, about thirteen feet, moved laterally toward one leg of the derrick. Which means, that the center of gravity of the derrick when the weight was put upon it by the pull moved nearly outside the lateral base of the "A" frame. At that point the derrick was still in equilibrium, but when the timber was pushed by the workmen on the second floor, who were placing the timber in position, the derrick's center of gravity moved entirely outside its base causing it to tilt and swerve as stated.

But, as shown by the statement, the swerving of the derrick would not have happened if in removing the derrick and putting it in place the men engaged in that work had used a third guy rope; or had put the snatch block in its proper place, that is, at a point at right angles to the base of the derrick opposite its center or to some point within its base; or, after the timber had been raised to the required height, if one of the workmen had observed the lateral swing of the load and had refrained from giving it an additional impetus in the direction of its swing in an effort to place the timber in position.

It seems from the statement that if, instead of attempting under the circumstances to pull or shove the timber further along the line of its swing, he had ordered it to be lowered and the snatch block readjusted the accident would have been avoided, because it is stated that the additional force of thirteen pounds exerted in that direction shoved the point through which the resultant of attraction of gravity acted outside the base of the derrick.

If Mr. Lee and the others with whom he was working had attempted to use the instrument without a guy line their negligence in so doing would have appeared to have been indisputable, but they neglected to use a third guy line, which was indispensable to the safety of the instrument in view of the fact that they had placed or intended to place the snatch block in the wrong position.

Now, it appears from the evidence that the workmen were provided with ropes and lines sufficient to make the derrick secure in its place while in operation. It was an instrument which was portable and had to be moved from place to place during the construction of the building. It was not a complicated machine but a simple instrument controlled by natural laws the same as a ladder, scaffold or any other convenience or instrument used in building. If a ladder negligently placed by a workman against a building falls due to his carelessness in placing it and he is injured while using it he cannot claim that the negligence was that of his employer. How may it be said with better reason that if he negligently places a derrick in position for use and is injured because of such negligence that it is the fault of his employer?

The instrument used in this case was very little more complicated than a ladder and is not a mysterious or enigmatical thing. It was a portable thing and was moved from time to time by the workmen as occasion required. Each time it was moved it had to be set up and fastened securely. The men understood the method of doing it. To be made safe for use in lifting heavy timbers it had to be stayed or anchored in place by sufficient guy ropes. This Mr. Lee and others placing the instrument failed to do. To avoid a lateral pull against the frame the snatch block, as shown by the majority opinion, should have been placed at a point at right angles to its base, preferably opposite the center. This the men placing the instrument negligently failed to do. When the weight was raised to the required height its lateral swing toward and near one leg of the derrick was apparent, the danger must then have been evident, but instead of lowering the timber and readjusting the apparatus the men handling the piece of timber pushed it farther in the direction of the lateral swing. As a result of the concurrence of these three acts, Mr. Lee lost his life.

It is stated in the majority opinion that the placing of the hoisting line at a point outside of a plane passing through the base of the "A" frame rendered the use of the derrick unsafe, but it is said that Mr. Lee could not be supposed to know the danger attending the use of the derrick under such conditions. It seems to me that to infer such lack of knowledge upon Mr. Lee's part is to deny to him the intelligence which is most certainly possessed by every ordinary adult person. Besides, Mr. Lee was a carpenter of experience and if he actually did not realize the danger which a lateral pull against the apex of the derrick would produce he had ocular proof of it so soon as the weight was lifted, because the line carrying the weight swerved toward the leg of the derrick upon which it turned.

The "limited area of safety" was made so by the men who put the derrick in position.

Mr. Burriss, a witness for the plaintiff, explained the method of handling and moving the derrick. He said that the moving of the derrick became necessary frequently as they finished one "bent" after another and then the "whole gang of us, sometimes Mr. Mattox would pitch in and help too, with the exception of two men, one on each guy to hold it and keep it from falling while we slided it along." They moved it a "couple or three feet at a time." They "always moved it standing up." "Mr. Lee was a member of that gang." When the accident occurred the derrick had just been, about twenty-five minutes before, set up in that location. "The accident happened the first time the timber was hauled up in its then location; the first time they pulled up timber with it the accident occurred."

All derricks are not in the form of the one used when the accident occurred in which Mr. Lee lost his life. They sometimes consist of a pole or spar set on end and secured by guys and carrying at the upper end a hoisting tackle. The area of the base of such a derrick and the location of the "snatch block" are unimportant factors in its safety as a hoisting device. A derrick consisting of an "A" frame with a lateral base of several feet is not, therefore, a less safe device. The danger of its use did not therefore lie in any fault of construction but, as the majority opinion states, in the failure to use "an additional guy."

The absence of a third guy line was obvious. The employer had provided an ample supply of ropes for the purpose. The failure to use at least three guy lines upon a derrick consisting of one upright pole or "A" frame is obvious to any ordinarily prudent person; but in this case there was present the additional factor of danger which consisted of the location of the "snatch block" through which the pull was exerted against the apex of the derrick in an angle outside of that formed by the guy line.

I think that the reception of evidence over defendant's objection that the derrick's frame, as constructed, was a dangerous or unsafe instrument was erroneous and constituted harmful error. The reception of evidence tending to show that if the snatch block had been properly placed in front of the derrick rather than several feet to one side there would still have been danger in its use, that is that there would have been an influence exerted tending to tip the derrick over, was erroneous and harmful. This point, I think, is shown to be well taken by the majority opinion which distinctly states it to be "perfectly apparent" that the derrick would not have overturned if "the hoisting line had been placed in a vertical plane passing through the guy line and through the center of the "A" frame. And the conclusion of the Court is reached by a study of natural laws applicable to the use of the derrick under the circumstances in which it was used. Witnesses were, therefore, permitted to testify adversely to the operation of natural laws of which the Court takes judicial notice.

There was error in admitting evidence over the defendant's objection tending to show that after the accident a foreman ordered three guy ropes to be used upon a similar derrick. The use of a third guy line upon a derrick, however, is so obviously important and necessary to its safety when in use, if the pull against it is to be in a plane at a different angle from that formed by the two guy lines upon it, that an ordinarily prudent person is presumed to apprehend it. In using the derrick in these circumstances, therefore, Mr. Lee assumed the risk. See Southern Turpentine Co. v. Douglass, 61 Fla. 424,54 South. Rep. 385; German-American Lumber Co. v. Hannah,60 Fla. 76, 53 South. Rep. 516.

I also think that the uncontradicted evidence in the case amply sustained the pleas of assumption of risk as this Court has frequently interpreted that doctrine. There were errors in the giving of certain charges which seemed to announce the issue to be whether the derrick had two guy lines instead of three and the absence of the third line was defendant's negligence, whereas the issue was whether the defendant had neglected to provide material for a sufficient number of guy lines.

There were other errors which I think were harmful, but those which I have endeavored to point out are sufficient, in my judgment, to require a reversal of the judgment which I think should be the order in this case.

BROWN, J., concurs.

ON PETITION FOR REHEARING. 1. 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.

2. 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.

Judgment re-affirmed.