80 Fla. 278 | Fla. | 1920
The defendant in error, hereinafter referred to as the plaintiff, brought his action for damages for personal injuries against the plaintiff in error, hereinafter referred to as the defendant, in the Circuit Court of Duval County, and recovered judgment for $7,500.00' and the defendant by writ of error brings this judgment here for review.
The negligence alleged against the defendant id the first and third counts of the declaration (the second count being withdrawn and eliminated by the Court during the trial), is as follows:
“G. W. Pughsley, plaintiff, by A. H. King, Roswell King and Bayard B. Shields, his attorneys, in this first count of his declaration, sues Frederick W. Long, lately doing business as Clark Monument Company, defendant, for that on to-wit, the 5th day of September, A. D. 1916, defendant was the owner of and was operating, as Clark Monument Company, a certain stone and monument business, and was engaged in the construction of certain stone work around and over the northern entrance or' doorway of a certain school house situated on the corner of Franklin and Seventeenth streets, near the City of Jacksonville, in Duval County, Florida; that on said day plaintiff was employed by defendant as a stone worker in and about the construction of the stonework over said doorway and was ordered by defendant to place and set up above the lintel of said doorway certain pieces of stone; that it then and there became and was the duty of defendant to use due care to furnish a reasonably safe, place for plaintiff to work, and to furnish for doing said, work reasonably safe and suitable instrumentalities, appliances, and materials; yet defendant, not regarding his duty in this behalf, wrongfully, negligently and carelessly
Our conclusion, after a careful consideration of the record in this case, is that the recovery had' thereon is not warranted by the facts in proof, or by the law applicable to those facts; and that the plaintiff on his own testimony alone as exhibited in the record can never lawfully recover anything from the defendant below for his injuries, severe as those injuries no doubt were. And why? Because, according to the plaintiff’s own story of the accident, his injuries resulted entirely from his own carelessness and negligence that was the sole proximate cause of such injuries. It is strenuously insisted here that he was inexperienced in the kind of work he was doing when the accident happened, and that the defendant was negligent in not informing him of the dangers
Again it is strenuously contended that the defendant was negligent in furnishing' to the plaintiff a thin 'slab of stone called' a name plate or freize to be 'pút in the wall under the heavy stones above it that was only 'two inches thick, when it should have been five or six inches thick as •called for by the architect’s plans and specifications for the building. There is not a scintilla of evidence that the placing of this two-inch slab of stone in the wall contributed in the remotest degree to the fall of the large heavy stones above it. On the contrary the uncontradicted testimony shows that this thin name plate stone was put in by the plaintiff himself, was backed up with brick work flush with its upper edge, and served the purpose only of a .veneering finish over the brick work. But again, we have no peonage in this country. The plaintiff was a freeman adult of normal mental capacity, and if the thinness of this name plate slab added to the dangers of his job, it was patent and obvious to him, and he was perfectly free to decline to put it in there, and he in that case was negligent in consenting to put it in or in working at it at all. All of the dangers incident to the work doing by the plaintiff were so obvious, patent, open and plain to any mentally normal adult, that no information, cautions or instructions with reference thereto were necessary to be given to the plaintiff by his employer or any one else, and there was, therefore, no actionable negligence in the defendant’s failure to undertake such cautions, instructions, etc. German Am. Lumber Co. v. Hannah, 60 Fla. 70, 53 South. 516.
Evidently from the whole case these heavy stones fell immediately after being laid and' placed by the plaintiff
The Court below erred in refusing to give the affirmative charge requested by the defendant, and erred in entering the judgment against the defendant, and efred in the refusal of the defendant’s motion for a new trial.
The judgment of the court below is hereby reversed at the cost of the defendant in error.