137 Tenn. 349 | Tenn. | 1916
delivered the opinion of the Court.
Plaintiff in error was the lessee of a five-story brick office building in Nashville, Tenn., known' as the Cumberland Presbyterian Publishing House. Defendant in error’s intestate, Frank Fleming, was em
The. grounds of negligence relied on are the failure of plaintiff in error to furnish deceased with a belt or other apparatus with which he could attach himself to the wall of the house or to the window, and a failure to have places on the wall or window upon which to attach said belt. It is also insisted that there was a work bench on the inside and in front of the window from which deceased fell, and which bench extended several inches above the level of the window sill; that there was a chipped place or break in the stone window sill on the top of same outside of the window, and that the top sash of the window had a nail driven under it so that it could not be lowered without extracting the nail. It is the theory of defendant in error that it is the custom of a window -washer where they have no belts and attachments to be used in washing windows above the ground floor, to wash the outside of the windows by sitting on the sill of the window with his body on the outside, wash the lower sash, then pull the upper sash down on his lap and wash the outside of it; that, in this case, because of the position of the work bench,
The proof shows the presence of the work bench, as charged, that there was a nail driven under the top sash of the window so that about one inch of the nail protruded, the purpose of which was to prevent the top sash from sliding down; that the nail gave evidences of 'having been there for some time and could be pulled out with a claw hammer; also that there was a broken or nicked place in the top of the window sill, on the outside, about three-fourths of an inch deep at its deepest point and running back about two inches to a feather edge. This nick was about three inches wide, and had been in the sill for some time before the day of the accident. It is admitted that deceased was not furnished a window washer’s belt, and that there were no hooks or appliances on or about the window to which to attach such belts. The foreman testifies that a few days before the accident, he told deceased to wash the windows when he had time, and that he did not give him any instructions because deceased knew more about washing windows than he did, that deceased had been porter on that floor about eight years, and that he washed the windows once or twice a year.
At the close of all of the proof, defendant below moved the court for a directed verdict in its behalf, which motion being overruled, the case was submitted to the jury and resulted in a verdict and judgment against plaintiff in error. The case was appealed to the court of civil appeals, and that court affirmed the judgment. A petition for the writ of certiorari was filed in this court, the writ was granted, the case set down for argument, and it has been ably argued at the bar of this court.
The plaintiff in error assigns but one error in this court, and this assignment goes to the action of the court of civil appeals in not reversing the trial court and sustaining the motion for a directed verdict because, as insisted by plaintiff in error, the uncon-tradicted proof shows that deceased assumed the risk.
Now, as to whether the deceased assumed the risk incident to the washing of the window under the conditions stated. The rule is that the servant assumes all risks which are necessarily incident to his employment, or which are obvious or known to him, 26 Cyc., 1185.
In the case of Brewer v. Tenn. Coal Co., 97 Tenn., 615, 37 S. W., 549, it was held that a servant, injured by falling from a defective elevated walkway used in the course of his employment, could not recover against the master for his injuries, where the defects of the walkway caused by the wear of long use were plain and obvious, requiring no special or expert skill to detect them. In that case it was said:
“In cases where persons are employed in the performance of ordinary labor, in which no machinery is used and no materials furnished, the use of which*355 requires the exercise of great skill and care, it can scarcely • he claimed that a defective instrument or tool furnished by the master, of which the employee has full knowledge and comprehension, can be regarded as making out a case of liability.” 97 Tenn., 620, 37 S. W., 549.
It has also been held that an ordinary ladder falls within the class of simple tools for defects in which the employer is held not liable, on the ground that such defect must be obvious to the user, by whom any risk of danger therefrom is assumed. Sivley v. Nixon Mining Drill Co., 128 Tenn., 675, 164 S. W., 772, 51 L. R. A. (N. S.), 37.
In the case at bar plaintiff was told to wash the windows. He was not instructed how to wash them", but was left to adopt his own plan. He was a person of mature years, being past fifty, and had been acting as porter in this building for eight years, and had washed windows on this floor before the day of the accident. The work bench, the flaw in the sill, and the nail under the top sash were all plainly to be seen; if not known to him, they were obvious, and by the exercise of ordinary care on his part could have been known to him. But we are of the opinion, from the proof in this case, that deceased knew of the defects complained of. They were in plain view, and he was more familiar with the windows than any one who worked on that floor. Not only were the defects obvious, but he was as capable of judging of the danger incident to undertaking to wash the window
There is another reason why plaintiff cannot recover in this case, and that is that the record fails to show that the negligence of defendant had any connection with plaintiff’s fall from the window. It is not sufficient for plaintiff to prove that the master was negligent, hut he must go further and show that the negligence caused the accident that produced the injury. National Fertilizer Co. v. Travis, 102 Tenn., 16, 49 S. W., 832; 29 Cyc., 587. The facts of this case do not bring it in that class of cases where proof of the injury and that it was caused by defendant will entitle plaintiff to recover in the absence of countervailing testimony. Railroad Co. v. Stewart, 13 Lea, 432. The mere fact of an injury does not ordinarily raise a presumption of negligence (De Glopper v. Railway & Light Co., 123 Tenn., 633, 134 S. W., 609, 33 L. R. A. [N. S.], 913), and in the case under consideration it will not he presumed that
For the reasons stated the judgments of the court of civil appeals and of the trial court are reversed, and plaintiff’s suit is dismissed. Defendant- in error will pay the cost.