Flowers v. Louisville & Nashville Railroad

Hocker, J., (after stating the facts.)—>We shall only consider the matters presented in the argument of the ■defendant in error in support of the ruling of the circuit judge. The first question presented is that the general allegations made in the declaration that the plaintiff was inexperienced, or that the alleged defect was unobservable without close inspection are mere conclusions of the — 608 — pleader and as sustaining :herefore bad. No authority is referred to this single contention. But it is contended that “such general allegations will be overborne by other allegations showing plaintiff’s experience, what 'he actually knew, the precise nature of tlje alleged defect and the surrounding circumstances. If from the other allegations it appears that the plaintiff was not inexperienced, but he knew the dangers and 'how to avoid them or howi to rse the machine, or that the alleged defect was known or might 'have been known to: him, or that he had the simie means of knowledge as the defendant, the declaration will be bad upon demurrer. To sustain these contentions the following authorities, 'vis. 1 Labatt on Master and Servant’ §388, p. 1022, and Atlantic Coast Line R. Co. v. Ryland, 50 Fla. 190, 40 South. Rep. 24, are referred to. There is frequently great difficulty in applying the multitudinous intricate and perplexing distinctions of the 'law of master and servant to á declaración.' The ingenuity of courts and judges in apjilying the doctrines' of “volenti non 'Ft injuria,” “imputed knowledge,” “assumed risk,” “obvious dangers,” and the like, are often puzzling' rather than enlightening. ft is stated 'in 2 Labatt on Master and Servant 854, th; plaint must v. Reese, 32 that a maste in the line of gence on. the ties resting r tion to exerc: ,t in order to withstand'a demurrer a com-allege facts, which if true show that the master was guilty of a breach of duty as regards the injured servant, and that the injury resulted from that breach of duty.” It is stated in South Florida R. Co. Fla. 212, text 233, 13 South. Rep. 436. • must not expose his servant when acting employment to dangers and hazards against which he may be .protected by reasonable care and dilipart of the master. Among the positive dupon the master to the servant is the obligase such reasonable care as prudence and the — 609 — exigencies of the situation require in providing the servant with safe machinery and suitable instrumentalities, and a reasonably safe place in which to work. The negligence of the master in this respect is not one of the perils or risks assumed by the employe in his contract of employment, and he has the right to insist that the master shall strictly comply with his obligation in this respect.” As a qualification of this doctrine the opinion proceeds to say: “that where a servant voluntarily engages in a service for another' and has full knowledge that the instrumentalities he is to' use and the situation in which the service is to be performed are dangerous, and the danger therefrom is apparent, and he makes no protest and his employer does not mislead him in any way as to these matters,, he assumes the risks ordinarily incident to Itihat employment, and cannot recover for injuries resulting therefrom.” In the case of Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148, it is held: “A servant in the performance of his duties is bound to exercise ordinary _ care for his own safety, or that degree of care which prudent persons usually exercise under similar circumstances, and if he is injured by failure to exercise such care his master is not liable.” It is said in Bailey on Masters’ Liability for Injuries to Servants, p. 160: “He (the servant) must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work where there is danger. He must inform himself.” But in connection with this doctrine it is stated on page 184, Id.: “Mere knowledge of the defect or method will not always be sufficient to charge the servant with an assumption of the risk thereof. Such knowledge must convey to a mind like his the danger that may or is likely to result to him in his employment from the defect or negligent act. As — 610 — was said in Cook v. Railway Co. (34 Minn. 45, 24 N. W. Rep. 311) : ‘It is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to- know or appreciate the risks resulting or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with the contributory negligence or the assumption of the risks growing out of them. The question is, did he know, or ought he to have known, in the exercise of ordinary common sense and prudence that the risks and not merely #the defect existed?’ (See 1 Labatt on Master and Servant, §240 a.) This'rule is consistent with the general rule relating to the conduct of persons in determining the character of an act—as to its being negligent or otherwise; that is, the servant ought, from his knowledge of the defect, reasonably to have foreseen that it might cause him injury. In all the various phases of the law of negligence this is the predominating and essential element to be established. It is the controlling test in the application of the rule of proximate, cause.” Another principle also applicable to the facts as alleged is that a servant is not bound to discover hidden or concealed dangers, (Labatt on Master and Servant, vol. 1 §409),. and that it is the duty of the master to warn the servant in regard to these dangers. Bailey on Masters’ Liability, 111 et seq. It is contended in the brief of defendant in error that a servant’s claim for damages must be judged not by what he actually knew, but by what he ought to have known, and that he is presumed to have observed and understood whatever an ordinarily prudent and intelligent person being under a like duty and having- the same means for acquiring- knowledge of the material facts would have, observed and understood. The applicability — 611 — of this contention, however, will depend upon the amount of experience which a servant has had and where, as in this case, it is alleged that the servant was inexperienced it has no application. 1 Labatt on Master and Servant, §395, and notes on pages 1046 et seg. It is further conténded in support of the ruling below that the principles announced in Atlantic Coast Line R. Co. v. Ryland, 50 Fla. 190, 40 South. Rep. 24, control the instant case. We cannot agree to this contention. In the last cited case the commander of a hand car was injured by being thrown from a hand car which he was operating. In the first count he alleged he was injured by the negligence of a servant who pulled the car so unsteadily as to cause it to sway violently and become derailed. In the second count, that the running gear of the hand car was loose, which caused it to sway violently and that the flanges were so -worn as to' cause 'the car to be derailed. It is not alleged that the plaintiff was ignorant of the condition of the hand car, and it is perfectly clear that the defects of the car were obvious. Under these circumstances this court held that Ryland could not recover. But the facts of the instant case are very different. The plaintiff here claims to be inexperienced, and that fact is admitted. It is claimed that the dangerous arrangement of the platform- was not seen by the plaintiff, and could not be seen without close observation, and that fact is admitted. All the arguments used by the defendant in error and authorities cited have been examined, but we think it unnecessary to say more than that in the present condition of the case it is unnecessary to discuss them. The foreman, under the authority of Camp v. Hall, 39 Fla. 535, 22 South. Rep. 792, stood in the place of the master, and in changing the platform so as to make the saws more dangerous, without notice to the plaintiff as is alleged — 612 — in the declaration the master must be held responsible. The plaintiff being inexperienced, it was the duty of the master to have notified the plaintiff of the change and of the danger which would be involved in using the knives. We are of the opinion that the circuit judge erred in sustaining the demurrer to the declaration. The judgment of the court below is reversed at the cost of defendant in error, and the case remanded for further proceedings. Taylor and Parkhill, JJ., concur; Shackleford, C. J., Cockrell and Whitfield, JJ., concur in the opinion.