47 Ind. App. 204 | Ind. Ct. App. | 1911
— This is an action for damages for personal injuries. There was a verdict and judgment in the trial court in favor of appellee, and appellant brings the ease to this court for review. Sixty-one interrogatories were submitted to the jury and answered.
The material facts disclosed by the answers to these interrogatories are as follows: Appellant was a private corporation engaged in the construction of railway-cars in Clark county, this State. In its plant appellant operated what was known as the “steel department,” in which steel ears were constructed. Appellee was employed in this department, and with two fellow workmen was engaged in riveting parts of the cars together. These three workmen had been furnished a set of tools with which to perform their work. Among these tools was what was known as a back-out punch, which was, at the time appellee was injured, in the hands of Henry Kopp. The men were attempting to remove a rivet from the side of a ear. Henry Kopp held the back-out punch against the rivet, another workman struck the punch with a hammer, and the back-out punch flew off of the handle and struck the appellee
Appellant filed a motion for a judgment in its favor on the interrogatories, notwithstanding the general verdict, which motion was overruled, and appellant excepted. This question was properly saved, and is one of the errors relied on for a reversal of this case on appeal.
The decision of this question must depend upon a proper determination and application of the rules of law governing the duties which the master owed to the servant under the facts disclosed by the answers to the interrogatories.
The first two cases relied on can be distinguished. In the case of Baltimore, etc, R. Co. v. Amos, supra, the facts showed that the hammer furnished to the servant was defective at the time it was so furnished; that the handle of the hammer was a hickory stick with the bark on it, and that it was worm eaten and decayed under the bark, so as to render it weak and unsafe for use. The person injured was not the servant who was using the hammer, but was one of his coworkmen who had never used the hammer or had an opportunity to inspect it. As we have before said, it is the duty of the master to furnish safe tools to his servants, and
In the case of Indiana, etc., Gas Co. v. Marshall, supra, the facts showed that the spurs furnished by the master to the servant were defective at the time they were furnished, and that the servant was inexperienced, and could not and did not discover the defect. Under the circumstances, the servant was held not to have assumed the risk, and the master was held to have been negligent in furnishing defective spurs. There is some language used in the opinions of both of the cases just referred to which would seem to indicate that a master who furnishes a hand tool to a servant is under the duty not only to inspect it for the purpose of seeing that it is safe and fit for use at the time it is furnished, but that this duty is a continuing one, which requires him to inspect such tool while in the possession of his servants to see that it does not become defective and unfit for use through use or deterioration. It was not necessary to extend the rule of inspection to this extent in deciding either of these cases. "We do not think the language employed in these opinions, which seems to indicate that it is the master’s duty to inspect simple hand tools while in the possession of his servants to see that they do not become defective while in their possession, contains an accurate statement of the law. We think that the better reason and the great weight of authority is on the other side of this proposition. Miller v. Erie R. Co., supra; Gulf, etc., R. Co., v. Larkin, supra; Towne v. United Electric, etc., Co., supra; O’Brien v. Missouri, etc., R. Co., supra; Marsh v. Chickering, supra; Wachsmuth v. Shaw Electric, etc., Co., supra; Garnett v. Phoenix Bridge Co., supra; Hefferen v. Northern Pac. R. Co., supra; Rawley v. Colliau,
In the ease of Baltimore, etc., R. Co. v. Walker, supra, this court seems to have followed the dicta in the two eases to which we have just referred. The court was therefore led to an erroneous conclusion. That case was referred to with disapproval in an opinion by Roby, J., in the later case of Indiana Stove Works v. Howden (1909), 44 Ind. App. 656. We are unable to reconcile the case of Baltimore, etc., R. Co. v. Walker, supra, with the decisions of other courts on this subject, which state the law as announced in this decision, and we are not able to distinguish it to our own satisfaction.
If that case correctly holds that the employe who was sent to procure the tool from the tool-house stood in the place of the master, and that his act in procuring the cold-chisel was the furnishing of a tool by the master, then the case is correctly decided, for the reason that it would be the duty of the master, under such circumstances, to inspect the tool to see that it was safe for use before furnishing it. But if the master had originally furnished a number of safe and suitable cold-chisels to employes for use, which afterward, and up to the time of the injury, remained in the exclusive custody and control of said employes, and none of which had even been returned for repair to the master or to any one representing him in providing said tools, and if some of said tools became defective through use, and said employes intermingled the defective cold-chisels with those which were fit for use, in a common receptacle known as a tool-house, which tool-house was not in the custody of any person in the service of the master whose duty it was to provide a tool of this character, and if one of the section men,
By the general verdict in the ease at bar the jury found that, appellant was guilty of negligence as averred in the complaint, in failing to inspect the back-out punch while in the possession of Kopp, who was the fellow servant of appellee. In view of the law as heretofore stated, the answers to the interrogatories are in irreconcilable conflict with the general verdict on this question. The answers of the jury to the interrogatories clearly show that appellant owed no duty to appellee in this respect, and that it was guilty of no negligence. The trial court should have sustained the motion of appellant for judgment on the interrogatories, notwithstanding the general verdict.
In the third instruction the jury was told that it was the duty of the master to exercise reasonable supervision over
The fourth instruction contains a proper statement of the law as an abstract proposition, but as applied to the facts in this case it was misleading and erroneous.
The judgment is reversed, with directions to the trial court to sustain the motion of appellant for judgment in its favor on the answers to the interrogatories.