The plaintiff in error contends that the original opinion conceives the issue to be whether or not at the time of the accident resulting in the death of Lee the derrick was rigged with three guy ropes, whereas the issue should have been whether or not the plaintiff in error had furnished sufficient material to provide an appliance with sufficient guys.
We conceive the issue to be whether or not the master at the time of the accident had furnished the servant Lee a safe place to work and safe tools and appliances to work with, except as against the acts of the said servant or his fellow servant.
The duty of the master to furnish a reasonably safe place in which to work and reasonably safe and proper tools and appliances to work with is a continuing one. He cannot in the beginning furnish a safe place to work or tools to work with and later take them away and by his actions or otherwise substitute newer different ones that are unsafe *Page 652 and then escape liability, unless it be shown that the act of the servant or fellow servant was responsible. The record shows conclusively that Lee was an inexperienced man on the job and knew nothing about the mechanics of the derrick and did not aid in its construction or operation.
In the original opinion, the court considered fully the distinction between the master's duty of provision and the servant's duty of operation and the circumstances controlling this relation. We think, however, that Crews was a vice-principal and his acts were the acts of the master. If the master originally performed his duty to provide and later at the direction of Crews, his vice-principal, by the removal of one guy, as was done in this case, the derrick was rendered an unsafe and different appliance by reason of which Lee was killed, the master is liable.
The introduction of testimony as to subsequent repairs by replacing the third guy after his death was not in contravention of the rule prescribed in Seaboard Air Line Ry. Co. v. Parks, ___ Fla. ___, 104 South. Rep. 587. Crews had been asked on direct examination how many guys were customarily used on such derricks. His answer was that only two guys were used on all such derricks as he had seen, that three guys were used on the derrick in question for a while because the ropes were old and rotten and that when new rope was obtained, the three old guys were replaced with two new ones. On cross-examination he was asked whether or not he did not see a third guy put on the derrick so operated with three guys right after this accident. The response was that he did and he went on to explain at great length. This procedure was proper on cross-examination because it was not offered or received as substantive evidence of subsequent repairs as was true in the Parks case and besides it was proper to test the credibility of the witness Crews who had testified to the contrary on his direct examination. *Page 653
The sole duty of Lee, the deceased, was to "land" the timbers when they were hoisted. The derrick as constructed and equipped by all known laws of mechanics governing its operation was an unsafe instrument or appliance. Lee was inexperienced and was not advised as to its danger in operation. It was, therefore, not only the duty of the master to advise Lee, but it was his duty to see that the derrick was properly constructed and equipped. This was not done.
Any inaccuracy as to the definition of a vice-principal could not have been harmful since the facts show conclusively that Crews was a vice-principal, and the damages awarded can in no sense be said to be excessive, so any inaccuracy in the charge of the court as to the elements of recoverable damages could not have harmed the plaintiff under the issue and evidence in this case.
Judgment reaffirmed.
WHITFIELD AND STRUM, J. J., concur.
ELLIS AND BROWN, J. J., dissent.