172 S.W. 159 | Tex. App. | 1914
Appellee, while in discharge of his duties as an employe of appellant, was descending a ladder furnished by appellant, and one of the rungs or rounds of the ladder came loose at one end and precipitated appellee to the floor of the room, in which he was working, and seriously and permanently injured him. No complaint is made of the size of the verdict.
Ordinarily the servant is not charged with the duty of inspection or inquiry. It is the general rule that the servant is under no obligation to inspect the instrumentalities provided by the master to discover concealed defects or dangers not disclosed by a superficial observation. He can assume that the instrumentalities furnished him by his master are not defective, but suitable for the purposes for which they were furnished. He is not called upon to seek for and discover hidden defects, but may be held to have assumed the risk of using a defective tool, implement, or instrumentality, when the defect is obvious and apparent. As said in Railway v. Hannig,
"We understand the law to be that when the servant enters the employment of the master he has the right to rely upon the assumption that the machinery, tools, and appliances with which he is called upon to work are reasonably safe, and that the business is conducted in a reasonably safe manner. He is not required to use ordinary care to see whether this has been done or not. He does not assume the risks arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or in the ordinary discharge of his own duty must necessarily have acquired the knowledge."
See, also, Railway v. Harris,
"The plaintiff had the right to assume when the bar was handed him by his foreman for immediate use that the defendant had discharged its duty in exercising ordinary care to furnish him a reasonably safe instrument with which to do the work he was directed to do. And, acting upon such assumption, it was not incumbent on him to make an inspection of the bar; and, unless he knew of the defect, or it was of such a nature as to charge him with such knowledge as a matter of law, and with the danger incident to his use of it in doing the work in hand, it cannot be said, as a matter of law, that he assumed the risk of using it, or was guilty of contributory negligence."
It is the rule that where a tool or implement is so simple that inspection is not necessary and any man of ordinary intelligence can see the defects, if any, in it, the servant will be charged with an assumption of the risk arising from its use. This rule will not apply where the defect is not obvious, but is a latent or concealed defect so far as the servant is concerned. In this case the evidence showed that the step or round of the ladder gave way because the nails used by appellant in constructing the ladder were not large enough for the purpose for which they were used. Appellant knew the kind of nails it used in fastening the steps on the sides of the ladder, and was charged with the knowledge that the nails were too small. The defect in construction was concealed from appellee, and he had the right to assume that appellant had used nails of a size requisite and sufficient to securely fasten the steps. It has been held in Missouri and Tennessee that a ladder under certain circumstances was a tool so simple that the master would not be liable, as the defects were obvious to the servant. Blundell v. Mfg. Co.,
In this state it has never been held that a ladder is such an instrumentality that the duty of inspection, as a matter of law, does not rest upon the master, but in the case of Cement Co. v. McBrayer,
The charge complained of in the fifth assignment is in the very language of decisions of the Courts of Civil Appeals and Supreme Court in several cases. Bonnet v. Railway,
However, there are other opinions of the Supreme Court in direct conflict with the decisions cited, which hold the assumed risk of the servant must be tested by the exercise of ordinary care, one of them in the same volume of reports in which the cited case of Railway v. Rea appears, both opinions being written by the same judge. Peck v. Peck,
It is unnecessary in this case to choose between the conflicting cases, because there was no evidence whatever to raise the issue of assumed risk, and the charge on that subject could not have injured appellant. Appellee did not have to inspect the ladder, but that duty devolved upon the master. An ordinary inspection would not have disclosed the structural defect in the ladder.
The special instruction, the rejection of which is complained of in the seventh assignment of error, was properly refused, if for no other reason, because there was no evidence to sustain it. All of the testimony tended to show that the defect in the ladder was one of construction, and was concealed from appellee. He did not have equal facilities with the maker of the ladder to know its structural defects. The defects in the ladder were not open and patent and as obvious to the servant as to the master, as in the cases cited by appellant.
The question of latent defects, in so far as appellant was concerned, was not raised by the evidence. Appellant made the ladder, and must have known that the nails used in its construction were too small for safety, and the court very properly refused to inject any such issue into the case, as was sought to be done by appellant in the special charge, the refusal of which is complained of in the eighth assignment of error. Outwardly the ladder presented the appearance of safety to any one not acquainted with its construction.
There is no merit in the ninth assignment of error. There was no effort to impeach appellee's written contract with appellant. He merely stated that he did not read the contract, but that its contents were explained to him. Even if the contract, which bound appellee "to examine all other places, ways, works and machinery," was valid and could be applied to ladders and other tools, a full inspection of the ladder would not have disclosed its structural defects. It is clear that the language of the contract had no reference, however, to ladders in which there were hidden structural defects. This contract could have no greater force than a rule of the employer assented to by the employé, and could not shift the whole duty of inspection owed by the employer to the employé. Bookrum v. Railway, 57 S.W. 919; Railway v. Lindsey,
The special charge set out in the thirteenth assignment of error is argumentative, on the weight of the evidence, and disregardful of the fact that appellant constructed the ladder and was charged with the knowledge that it was not "reasonably safe and sufficient to be used by persons ascending and descending same." The charge is also incorrect in that it made the liability of appellant depend on the fact that it may have regarded the ladder safe.
Every issue made by pleadings and evidence was presented in an admirable charge by the trial judge to the jury, which found appellant liable under facts sustaining such liability, and the judgment based on the verdict will be affirmed.
*162Affirmed.