Judges: TERRELL, J. —
Attorneys: Marks, Marks Holt, for Plaintiff in Error;
Kent Dewell, for Defendant in Error.
Filed: Dec. 04, 1924
Latest Update: Mar. 02, 2020
Summary: About five o'clock June 6, 1921, W. F. Lee, aged thirty-four, while in the employ of Wilson Toomer Fertilizer Company erecting a warehouse, was struck by an A Frame Derrick, fell from an elevated scaffold striking head first on the floor twenty-two feet below, and as a result of the fall was instantly killed. The derrick was rigged on the scaffold from which Lee fell, and was twenty-two feet and six inches tall, seven foot base made of 2x6's with 2x8 base. Nora Lee, the widow of the deceased F.
Summary: About five o'clock June 6, 1921, W. F. Lee, aged thirty-four, while in the employ of Wilson Toomer Fertilizer Company erecting a warehouse, was struck by an A Frame Derrick, fell from an elevated scaffold striking head first on the floor twenty-two feet below, and as a result of the fall was instantly killed. The derrick was rigged on the scaffold from which Lee fell, and was twenty-two feet and six inches tall, seven foot base made of 2x6's with 2x8 base. Nora Lee, the widow of the deceased F. F..
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I cannot bring myself to the conclusion of the majority, so ably presented by Mr. Justice TERRELL, that this judgment should be affirmed. My thought is that, in addition to the reasons for a reversal set forth in the dissenting opinion of Mr. Justice ELLIS, there appears the following: (1) the erroneous definition of a vice-principal contained in charge No. 18 given by the court at plaintiff's request; and (2) the misleading nature of the court's charge as to the elements of recoverable damages, which should have limited the same to the probable joint lives of the husband and
the widow, rather than basing same upon the life expectancy of the husband alone.
According to my understanding of the issues and the evidence, both these errors were material and prejudicial. I am authorized to say that Mr. Justice ELLIS concurs in these views.
