41 Fla. 94 | Fla. | 1899
Defendant in error sued plaintiffs in error in the Circuit Court of Duval county, claiming damages for per
The declaration contained two counts. The first alleged that plaintiff was a servant of defendants; that defendants were negligent in furnishing a defective hoist-away. The second alleged that plaintiff was a servant of Kuchler; that the latter was employed by defendants to inspect and test the plumbing in the tower; that plaintiff, at Kuchler’s request, went to the building to do whatever work in the line of plumbing that might be required by defendants; that he entered the building at the invitation and by the request of defendants, and was required to inspect and test the plumbing; that it was necessary for plaintiff to be elevated from the ground floor by means of a hoistaway which was furnished and provided by defendants; that the hoistaway, by reason of
Defendants then filed additional pleas. The first alleged that it was not true, as alleged in the first count, that plaintiff was an employe of defendants, but that plaintiff was a servant of Kuchler as alleged in the second count. The second plea denied certain specific allegations of the declaration, and alleged that Kuchler was an independent contractor; that plaintiff was his servant and went in and upon the building at Kuchler’s invitation and worked there under the control and supervision of Kuchler exclusively, and that defendants exercised no control over plaintiff or the work in which he was engaged. The third plea alleged that the injury was caused by the negligence and improper conduct of plaintiff, and not otherwise. Plaintiff replied to these pleas, “The plaintiff joins issue on the first, second and third pleas of the defendants.”
I. It is insisted that the second and third pleas alleged new matter requiring a special replication; that the “joinder of issue” filed thereto was a nullity, and consequently that there were no issues based on these pleas to try when the case was submitted to the jury. The defendants went to' trial upon these supposed issues, without testing the sufficiency of this general replication by demurrer or motion to strike, and without raising any objections to a trial upon the issues thus supposed to' have been joined, and unless it is clear that the replication was a nullity, and that a special replication was absolutely required to these pleas, the defendants should
II. At plaintiff’s request the court gave nine separate instructions, several asserting distinct propositions, some of which were correct. The exception to thesfe instructions was general, and as some of them were correct, the assignment of error based upon this exception must fail.
(B) That the evidence was insufficient to show that the breaking of the rope was due to defendants’ negligence. A master does not insure the safety of his employes; he does not warrant the instrumentalities furnished by him to enable his servants to- accomplish his work. The extent of the master’s obligation is to- exercise such ordinary and reasonable care as prudence and the exigencies of the situation require, in providing the servant with safe machinery and suitable instrumentalities for his work. If this obligation be performed, the •master is absolved from all liability for defects in such machinery and instrumentalities. On the other hand, the servant owes a duty to his master to exercise ordinary care for his own safety. While he has a right to presume that the master has performed his duty, and is not therefore ordinarily bound to discover latent defects in the instrumentalities furnished him, yet he must notice all those patent and obvious defects which the exercise of ordinary care would enable him to discover, for otherwise, his own negligence will contribute to his injury and thereby prevent recovery. South Florida Railroad Co. v. Weese, 32 Fla. 212, 13 South. Rep. 436.
The judgment of the court below is reversed and a new trial granted.