Fla. Gravel Co. v. Davis

I concur in the conclusion to reverse the judgment for the confusion pointed out in the Court's charges, but deem it important to call attention to the obvious confusion that has occurred in the minds of counsel, as well as of the court, between the doctrine of assumption of risk and that ofcontributory negligence. The distinction is most important and should never be lost sight of in making up the issues in a case of this kind. It applies especially to the fifth plea involved in this case.

Assumption of risk is a matter of contract. Contributory negligence is a matter of conduct irrespective of contract. To defeat a servant of his action on the ground of assumption ofrisk it is necessary to show that he agreed, expressly or impliedly in his contract of employment, long before the accident happened, that he would assume the very risk from which the servant's injury arose. To defeat a servant of his action by the rule of contributory negligence, it is only necessary to show that because of the servant's negligent conduct at the time of the accident, the accident was in part caused to happen, or in other words, that the servant's conduct, under all of the attendant circumstances, fell so far short of ordinary care that the injury was in part proximately caused by servant's own fault concurring with that of his master. See Wilson, etc., Fert. Co. v. Lee, 90 Fla. 632,106 Sou. Rep. 462; Cooney-Eckstein Co. v. King, 69 Fla. 246,67 Sou. Rep. 918; Swanson v. Miami Home Milk Producer's Assn., 117 Fla. 110,157 Sou. Rep. 415. The foundation of the doctrine of assumption of risk is to be found in the ancient English case of Priestly v. Fowler, 3 M. W. 1, 7 L.J. Exch. 42, 19 Eng. Rul. Cases 102, 18 R.C.L. 671, et seq.

The doctrine of assumption of risk, as employed in the law of master and servant where it is principally, if not solely applicable in the law of negligence, is merely another way of saying that the terms or nature of a servant's contract of employment may be such that, under all the circumstances, the law imposes the hazard upon the employee for certain injuries that are likely to happen to him because of the character of his duties, whether the master be negligent or not. In this respect, a plea of assumption of risk differs from a plea of contributorynegligence, because a plea of contributory negligence impliedly admits some negligence on the master's part that proximately contributed to causing the servant's injury, but says that the injury would not have been caused even in the face of the master's admitted negligence, had the servant himself observed ordinary care under the circumstances, for his own well being. On the other hand a plea assumption of risk when interposed as a defense, takes the position on the master's part that the servant has been injured through a fortuitous happening that was not to be unexpected from the nature of the servant's duties under his employment contract, and that therefore, inasmuch as the master has been entirely free from all negligence proximately contributing to causing the precise injury of which the servant complains and sues, that under the circumstances the law should impose the hazard upon the servant, because the terms or nature of his contract of employment required him to assume the risk of those injuries that were likely to happen in the course of such employment without the master's fault, or regardless of any precaution that the master would ordinarily take for his servant's protection. See: Rase v. Minn. St. P. S. Ste. M.R. Co., 107 Minn. 260, 120 N.W. 360, 21 L.R.A. (NS) 138, and notes appended thereto.

Whenever a man, whether servant or not, undertakes work that is dangerous, or does anything dangerous, he encounters the risk, but it by no means follows that legally speaking he assumes the risk. City of Jacksonville Beach v. Lola May Jones, 101 Fla. 96,133 Sou. Rep. 562. Under no circumstances can a man be said to assume the risk of injury from another's negligence when he himself is free of fault, because indeed a specific written contract against negligence of another is void, when made in advance of injury. Such a contract would be void as against public policy.

WHITFIELD, C.J., and BROWN, J., concur.