61 Fla. 199 | Fla. | 1911
It appears that J. B. Fitzsimmons was employed by A. J. Cesery & Company, a corporation, and directed to work upon a scaffold from which he fell and received the injuries for which this action is brought. It is alleged that “defendant carelessly and negligently failed to provide a safe place for plaintiff to stand while
“Now comes the defendant by John E., and Julian Hartridge its attorneys and demurs to the evidence herein and says that the same is not with all of its inferences and legal intendments sufficient to fix the liability upon the defendant, and admits on the record here the facts as follows with all the legal inferences, deductions and intendments authorized in law to be drawn therefrom, to-wit:
J. B. Fitzsimmons, is plaintiff, that he was employed by the defendant at the Aragon Hotel, and sent from there by defendant, on November 4th, 1909, to work at the pumping station at the foot of Newnan street, Jacksonville, Duval county, Florida, that his first work for defendant was to go on a scaffolding on the east side of the building and put on metal laths, he got the cornice in condition for the cement and came down to get cement. When he came down, the south end of the scaffolding was about ten inches lower than the north end. He spoke to Walter Williams who was employed by the A. J. Cesery & Company, and was foreman, and working on the east side of the building. Williams asked him if the scaffolding was too low at the south end. He said it was. Williams then directed a man to fix that end. Fitzsimmons waited, talked to Williams on the west side of the build
He had worked on the scaffolding about two hours before he came down for the cement; when he went back on it, the south end had been raised, it seemed to him by putting a block on the step-ladder under the board. He saw the block as he fell but not before. After the fall, Williams picked him up, and said to a man there 'What the hell do you mean by putting up a death trap like that?’ this was said to the man who made the change in the scaffolding. There was no scaffolding on any side of the building except the east side; he did not know whether the board fell to the ground with him or not. Williams had told him to go to work on the scaffolding when he first came down to the job. He did not carry cement with him when he went up the second time, but went up to go back to work; he did not test it but supposed the man Williams told to fix it had fixed it alright. He was taken to the doctor, who set his arm, suffered for eight days almost unbearable pain, had to wear his arm in a sling for 40 days, unable to work for. more than 100 days, was iron and brass moulder by trade, at which he got three dollars and a half and $4.50 a day; that at the time of the accident he was a cement finisher at $2.00 per day, had been promised a raise by Cesery & Co. if he made good, spent about $3.00 for linament, and still suffers.
Joe Rafford went to work on November 4, 1909, at the foot of Newnan street for Cesery Company on the pumping station job'. There were working on that job Walter Williams, Joe Lyed, Herbert Schuman, J. B. Fitzsimmons and himself; he was working on the south side of the
Joe Lyed was working on the pumping station for A. J. Cesery Co. at the foot of Newnan street with Joe Rafford and Herbert Schuman, J. B. Fitzsimmons, Walter Williams was superintendent in charge for the A. J. Cesery & Co. On the 4th of November, 1909, he helped Schuman build the scaffolding on the east side of the building; he had previous helped Schuman build another scaffolding on the west side of the same building.
After the scaffolding had been built that morning, he went inside to mix cement and while there heard Williams, the foreman, outside, tell Schuman to raise one end of the scaffolding which had been built by Lyed and Schuman. Schuman raised one end and after that Fitzsimmons went up the scaffold and it fell with him, and he got hurt. He went around after the accident and saw Walter Williams pick him up; he heard him say 'Are you trying to kill somebody? He had been working for A. J. Cesery Co. about four weeks, and Schuman was working for the company when he first came with them. Schu
That the plaintiff was attended by Dr. J. H. Durkee, who set the dislocation and stated he might be disabled 3 or more week, and that he might cárry his arm in a sling from 3 to 5 weeks, that the setting of the dislocation was only a matter of a minute; that he necessarily suffered pain at the time of setting the dislocation and afterwards complained of pain because of the tight bandage, and which was released by the doctor; the doctor’s charges were $25.00; that he would be unable for some weeks to suddenly pick up with the arm dislocated any heavy weight but with work only requiring ordinary sidewise use of the left arm or only requiring the right arm he could have gone to work within a few days.
Walter Williams was by trade a carpenter, but also a cement-work worker employed by the A. J. Cesery & Co., and was in the charge of the pumping station job at the foot of Newnan street Nov. 4, 1909; that there were working there at that time Walter Williams, Joe Rafford, Joe Lyed, Herbert Sclíuman and J. B. Fitzsimmons, for the A. J. Cesery & _Co.”
This demurrer to the evidence was sustained and final judgment was entered for defendant. On writ of error the plaintiff assigns as errors the ruling on the demurrer to the evidence and the final judgment entered thereon.
An employer is liable in compensatory damages for injuries to employees caused by the negligent performance or non-performance of any duty to the employees devolv ing upon the employer by virtue of the express or implied requirements of the employment whether such duty is negligently performed or omitted by the employer or by one acting in the place and stead of the employer. The particular duties imposed upon the employer with refer
If an employee negligently fails to exercise ordinary care for his safety, he cannot in general recover damages for an injury caused by his negligence. Under the common law, a plaintiff cannot recover damages for injury to himself caused by the negligence of another if he has in any appreciable way contributed to the proximate cause of the injury. This rule has not been changed in this State in this class of cases. German-American Lumber Co. v. Hannah, 60 Fla., 70, 53 South. Rep. 516.
A demurrer to the evidence properly submitted should be overruled when upon the evidentiary facts stated therein and the inferences fairly to be drawn therefrom a finding for the plaintiff may lawfully be predicated, the weight and credibility of the evidence being for the jury to determine. Atlantic Coast Line R. Co. v. McCormick, 59 Fla., 121, 52 South. Rep., 712; Mugge v. Jackson, 50 Fla., 235, 39 South. Rep., 157; Ingram v. Jacksonville St. R. Co., 43 Fla., 324, 30 South. Rep., 800.
The judgment is reversed.