53 Ind. App. 136 | Ind. Ct. App. | 1913
— Appellee in this case recovered a judgment in the trial court for damages on account of personal injuries. The facts disclosed by the evidence show that appellee was employed by appellant to work in its car shops, and that at the time of his injury he was engaged with two fellow workmen in fastening rivets in the steel frame of a car which was in process of construction. It was the work of appellee to hold an iron bar known as a “dolly” against the heated rivet while it was hammered into place by another member of the gang called a “riveter,” who used for that purpose
Appellant maintained a tool room in connection with its factory where it kept on hand a supply of hammers, hammer handles and such other tools and parts of tools as were required for use in the factory. It kept on duty in this tool room men whose business it was to repair tools which were returned as defective, and the employes in the factory were instructed to return all tools which became defective while in use to this tool room. When this was done the tool was repaired or another furnished in its place. The hammer which was in the hands of the riveter at the time the injury occurred, had been furnished to him from the tool room about two or three weeks before, and had remained in his possession until the time of the accident. When not in use it was placed in a tool box or locker which was under the control of the men who worked in this gang. There is no evidence tending to show that the tool was defective at the time of its delivery to the riveter by the appellant, and none tending to show that appellant had any actual knowledge that it had become defective by use or otherwise while in the possession of the riveter. The hammer was a hand tool of such simple construction that the defect which caused the injury could have been discovered without special skill or knowledge and without intricate inspection.
The trial court permitted a recovery upon the theory that appellant owed the duty to inspect the hammer while it was in the exclusive possession and control of the servant, and that he was chargeable with knowledge of such defects as would have been disclosed by such inspection. This appears from several of the instructions given, and also by the ruling of the court in refusing to give certain instructions tendered by appellant. For errors thus appearing a new trial should have been granted. Other questions presented need not be considered as they are not likely to arise upon a retrial of the case. Judgment reversed, with directions to grant a new trial.
Note. — Reported in 101 N. E. 318. See, also, under (1) 26 Cyc. 1138; (2) 26 Cyc. 1276, 1332; (3) 26 Cyc. 1080. As to the extent of duty imposed on master in respect of tools furnished servant to work with, see note to Brazil Block Coal Co. v. Gibson (Ind.) 98 Am. St. 290; 1 L. R. A. (N. S.) 944. On the question of the liability of a master for injury from defect in simple tool, see 40 L. R. A. (N. S.) 832; 7 Ann. Cas. 342; Ann. Cas. 1912 A 1004.