80 Tenn. 63 | Tenn. | 1883
delivered the opinion of the court.
Duffield was a section hand in the employment of the railroad company, and was at work in spiking down rails on the road, under a section boss, when the injury was sustained for which he brought- this suit. The rails had been taken up, and were being relaid as fast as possible for the next train. • The plaintiff below was using a hammer with which he had been working for six months. The hammer was furnished by the company, and was an old hammer, the plaintiff says, when .he got it, and with a handle that he himself had put in it, which was cracked. The face of the hammer at one end was bursted partially off, and the face of the other end was rounded like an egg. The plaintiff says the hammer was broken on the day before the accident in cleaving rails, but there is other testimony tending to show that the hammer had been in the same condition for a week or longer. The section boss directed the plaintiff to take the hammer and drive the spikes in the rails. The plaintiff objected that the hammer was dangerous to work with, but the section boss told him, with an oath, to fake it and go on - with the work, otherwise he would lose his place. The plaintiff did accordingly proceed to drive spikes with the hammer, when one of the spikes “flew” under a blow of the hammer, and struck him on the shin, breaking the bone, and creating a severe and ulcerous wound. According to the testimony the work of driving spikes is a dangerous one, the spikes frequently flying when struck by the most . skilful men
The verdict and judgment were in favor of the plaintiff below, and the railroad company appealed in error. The grounds relied -on for reversal are alleged-errors in the charge - of the court, or in the refusal to charge as requested. The Referees have reported in favor of reversal because of an error in the charge
The court, among other things, charged : “¡If the evidence shall show you that the defendant furnished to plaintiff a defective or unsuitable hammer, and that the defects in the hammer were such that plaintiff could have seen them and known them, and judged of the unsuitableness of the same as well as his superior ; and if he, plaintiff, accepted service using the same, or continued in service using the same, with full knowledge of such defects, he would be regarded as voluntarily taking the risk, and he could not recover for any injury resulting from such defective implement. But if the evidence shall show that the plaintiff had already entered upon his employment under the defendant’s servant, and if, while so engaged, he discovered the defective condition of an implement with which he was ordered or required by his supe
The Referees suggest that the charge is self-contradictory, the latter end having forgotten the beginning. For while the first paragraph .says broadly that the plaintiff cannot, recover if he used the hammer with knowledge of its defects, the last paragraph says he may recover notwithstanding such knowledge. The charge is loosely worded, but his Honor no doubt intended to say that while, as a general proposition, a servant cannot recover for an injury occasioned by the use of a defective tool while he continues to use it with knowledge of its defects, yet he may recover in the particular case where he was ordered by his immediate superior to use the implement on pain of being discharged notwithstanding his knowledge of its defects. And the question is whether the proposition enunciated is correct as matter of law in view of the facts of this case.
The master is not an insurer of the safety of his servants in respect to the machinery or implements used, nor is he under an obligation, under all circumstances, to make use of the safest known instruments,
The reason of the rule that the servant cannot recover damages if he continues to work with defective tools with full knowledge of the defects, is that being a free agent the law presumes that he will refuse to work with dangerous implements unless his compensation is proportioned to the risk. Every employment has its hazards which the employee necessarily assumes in accepting the service, or continuing in it with knowledge of any particular risk. It is negligence therefore on his part not to avoid or bargain for a known danger. The modification of the general rule suggested above, as made by some of the cases that the servant may recover "for an injury occasioned by a defective tool of the defect of which he was aware, is difficult to maintain on principle. For it virtually changes the rule as to the free agency of the servant, and requires, as has been said, that the master should be more careful of the servant than the servant is of himself. It has not been recognized in this State.
The mere fact, therefore, that the servant has remained in the service of the master with knowledge of a defect in the instrument used will not, of itself, as matter of law, exonerate the master from liability. It is evidence, and ordinarily conclusive evidence of contributory negligence on the .part of the servant which will bar recovery. But the question of negligence, under the circumstances. of a case, is • for the jury. And the extent of the danger of the act, the fact that it is done under the direct order of the master or his agent, and the,, exigency of the occasion are essential elements in determining the question.
His' Honor, the trial judge, clearly erred in charging that: “ The burden of proof is on the defendant to show that it provided plaintiff with tools and implements suitable, sufficient and safe as care and skill can make them: ” and in refusing to charge, as re■quested by plaintiff, that: “ The law presumed that the master had performed the duty the law imposes to furnish safe and suitable machinery; and the bur-, -den of proof is on the plaintiff to show that this duty has not been performed.” But both the charge •and the request were useless abstractions. The proof was clear, and furnished by the plaintiff, that the tool in question was not suitable, sufficient and safe, and the matter of the burden of proof was utterly immaterial. The real and only point of difficulty was that •of the contributory negligence of the plaintiff in using the defective hammer with full knowledge of the defect. This is one of the most glaring’ instances of a prevailing fault in the charges of the circuit judges, the dealing in general and abstract propositions of law instead of coming down to the facts of the particular ■case.
The other requests of the defendant are open to •the same objection. They are either abstract propositions or propositions which were only half truths, and useless in view of the only real issue. Thus the •court was asked to charge as' follows: “The servant is not required to inspect the appliances and tools to see if there is any latent defect,. but he is bound to
Now how could it be of the least importance to lay down the law in relation to the duty of a servant as to latent and patent defects, when the defect under consideration was patent, and fully known to the plaintiff, as he himself testifies? And what was the use of rédrafting in a different form the general proposition already laid down in the charge that the use of a defective tool with knowledge of the defect would prevent a recovery, when the sole point was whether the circumstances took the case out of the rule, and the court had expressly charged that they did if found. It seems like a useless consumption of time and paper.
Another request was: “The question is whether Duffield was guilty of negligence in performing the service after a knowledge of the defect. The fact that he has complained of the defect, if no promise
Another request was: “Duffield, in order to recover, must take the burden upon himself of establishing negligence on the part of the railroad company, and also due care on his own part. He must introduce proof overcoming two legal presumptions, that is two presumptions of law: first, the presumption that the railroad company has discharged its duty by furnishing suitable and safe tools; and second, he must introduce proof to overcome the presumption of law that at the time he. entered the service he assumed all the ordinary risks of the business. These are absolute burdens imposed on Duffield, and he is not relieved from the force of these presumptions by showing that any injury resulted to him in consequence of a defective tool employed in the business, but he must go further, and show that • the defect producing the
The • jaaragraphs of the charge, which are excepted to, in relation to the incompetency or misconduct of the section boss, and the duty of the company in selecting and employing careful servants, were mere abstractions, and ifj as contended, there are no facts in the record upon .which to rest them, they could not possibly do any harm. Very few verdicts would stand if the vague generalities which trial judges feel it their duty to indulge in so as to cover every possible view which may have been presented in the argument of counsel, were treated as fatal because there were no facts in evidence to sustain them. The real issue in this case was whether its peculiar facts took •it out- of the general rule that a servant cannot recover for an injury occasioned by a defect of which
The report of the Referees must be set aside, and the judgment affirmed.