delivered the opinion of the court.
The plaintiff, an employee of the defendant railway company, was injured while in the discharge of his duties as section-hand, and brought this action to recover damages. He contends that he was required to work with a pick, the points of which had become- so worn and dull that the use of it greatly increased the hazards of his employment; that about September 1, 1922, he complained to the foreman in charge, who promised to have it sharpened or to supply a sharpened pick; that he relied upon the promise and continued to use the defective tool; that on September 24, while engaged in an ef
Section 9364, Revised Codes, provides: “Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto.” In the interpretation of that statute, this court has announced the following rules:
(1) Upon a motion for a directed verdict in favor of the defendant, the evidence introduced by the plaintiff will be considered in the light most favorable to him and as proving whatever it tends to prove.
(2) A cause should never be withdrawn from the jury, unless the conclusion from the facts follows necessarily, as a matter of law, that a recovery cannot be had upon any view which can be drawn reasonably from the facts which the evidence tends to establish.
(3) In reviewing an order directing a verdict for the defendant, this court will consider only the evidence introduced by the plaintiff, and if that evidence, when viewed in the most favorable light, tends to establish the case made by the plaintiff’s pleadings, the order will be reversed. (Ball v. Gussenhoven,
In considering the evidence before us, allowance must be made for the crude manner in which the witnesses expressed themselves. Plaintiff is an Albanian, his witness Miller is a Greek, and his witness Maros a foreigner also. As disclosed by the record, these witnesses had a very limited knowledge of the English language; but evidence is not to be weighed by the elegance of diction or the terseness of expression, but by its intrinsic worth.
The record discloses that the plaintiff went to work for the defendant as a section-hand on the section at Drexel about the end of July, 1922; that Paulos was the section foreman; that, when the picks became dull from use, they were gathered up once a month and sent to the shops at Deer Lodge or Tacoma to be sharpened; that new or sharpened picks were delivered once a month by the supply car which came through about the 20th of every month; that, during the summer of 1922, there was a strike of blacksmiths at the shops and new or sharpened picks were not delivered from June until December; that, when plaintiff went to work, the supply car had already passed this section for the month of July; that he knew when the car passed through in August, but did not know that the car had passed in September before he was injured, although it had done so.
Counsel for defendant insist that the evidence is insufficient to carry the case to the jury. They argue, first, that it does not disclose that the pick was in a defective condition, or, stated differently, that it was not in a reasonably safe condition.
It is made to appear that a pick in a reasonably efficient condition has prongs which are from eight to ten inches long; that, at the time plaintiff went to work, all the picks in use
Miller testified that when a dull pick strikes a rock it causes more particles of rock to fly than will a sharp pick; that a blow from a sharp pick will cause the point of the pick to penetrate a tie and it will not glance off.
Plaintiff testified that a sharp pick will not break a rock as much or cause particles of the rock struck to scatter as much as will a dull pick. He testified further: “It was dangerous to work with those picks, because dull picks will fly large dirt up and no stick in tie.” And again: “While- working before at Drexel, it breaks a rock and hits me on the legs.”
We think this evidence, with other evidence of like character in the record, is sufficient, if not contradicted, to justify a jury in finding that the pick was not in a reasonably safe condition for use, and that the use of it increased the hazards of plaintiff’s employment.
Again, it is contended that the evidence fails to disclose the proximate cause of plaintiff’s injury. It does appear that, at the time of his injury, plaintiff was in the discharge of his duties, removing old ties and replacing them with new ones; that he- was using his pick, attempting to- split or chip off the top of an old tie in order to remove it; that he struck three blows, the first two of which were ineffective for any purpose; that when he struck the third blow, the pick failed to penetrate the tie, but glanced off, passed through a thin covering of fine dirt and struck something, with the result that a hard substance flew up, striking the plaintiff in the- eye and causing a severe injury. On cross-examination, plaintiff testified: “Don’t know what hit me in the eye * * * something hard hit me in the eye.”
Miller testified that immediately after the injury he examined the place where plaintiff’s pick struck and1 discovered a
It is the rule in this jurisdiction, and elsewhere generally, that the proximate cause of an injury may be proved by indirect evidence (De Sandro v. Missoula L. & Ry. Co.,
Again it is insisted that the evidence fails to show a suffi cient complaint, a sufficient promise to repair, or a reliance upon the promise, if one was made. Plaintiff testified: “Complained to Paulos about it being dangerous to work with that pick before and after I got hurt on the leg. * * * I told the foreman we got to have some tools, because the tools is kind of dangerous working like this. He say he ordered the roadmaster to send some to us. * * * The foreman told us to do the best we can. * * * He said this week or next week some time the picks will come. The foreman told me would have to wait for the supply car to get the picks. I said, I told him that the picks were dangerous. Danger would be somebody getting hurt because of the dull picks.”
Paulos testified: “All the men' said that the tools are not suitable to work with. * * * Whenever the boys make that complaint, I told them that I had ordered picks, and was expecting them in the supply car. * * * In the month of August I made a requisition for some sharp picks. Every month I made that requisition.”
In 4 Labatt on Master and Servant, section 1345; the rule established by the current of authority is stated as follows: “When complaining of defective instrumentalities of machinery, it is not necessary that the servant shall state in exact words that he apprehends danger to himself by reason of the defects, nor need there be a formal notification that he will leave the service, unless the defects be repaired or remedied. It is sufficient, if from the circumstances of the case it can bé fairly inferred that the servant is complaining on his own account, and that he was induced to continue in the service by reason of the promise.” And in section 1343 the author says: “Any acts or expressions by which the servant gives the proper agent of the employer to understand that he is unwilling to continue in the employment unless the cause of danger is removed constitute a sufficient complaint, and any acts or expressions by which such agent gives the servant to understand that the cause of danger will be removed constitute a sufficient promise.”
In Hermanek v. Railway,
In support of their contention that the promise, if made, was not relied upon, counsel for defendant direct attention to the testimony of plaintiff given on cross-examination, to the effect that, if he had not been injured, he would have continued the employment and the use of the defective pick. But counsel would have us reverse the rule, and consider plaintiff’s testimony in the light most unfavorable to him, and this we may not do. But even if we consider the evidence referred to, it does not follow that a jury would not be justified in finding that the promise of defendant was the inducing cause tor plaintiff’s continuing his work.
In Missouri, K. & T. Ry. Co. v. Brown (Tex. Civ. App.),
Whether plaintiff did continue to work with the defective pick for .an unreasonable time after the promise was given was a question for the jury to determine. (Breen v. Iowa Cent. Ry. Co.,
In Atchison, T. & S. F. R. Co. v. Lannigan,
We are satisfied that these authorities state the rule correctly.
• Paulos was the foreman in charge of these men. He had general supervision and direction of their work; kept their time; made requisitions for supplies, including new or sharp picks, upon printed forms furnished to him by .the railway company. He had charge of the tools, which he kept in a toolhouse at night, and this toolhouse he kept locked and retained the key himself. In Prezeau v. Davis,
We conclude that plaintiff’s evidence, when viewed in the light most favorable to him, required a submission of this case to the jury, unless the character of the instrumentality with reference to which the promise was given, affects the result and compels a different conclusion.
It is conceded by counsel for plaintiff that the pick in question is a simple tool within the meaning of that term as it is employed in the law of master and servant, and it is over the application of the so-called simple tool doctrine' that the particular controversy herein is waged.
The general principles of law which define the duty of the . master, and define and limit the doctrine of assumption
It is also a rule equally well settled that, if the servant discovers that the appliance furnished for his use is in a dangerously defective condition, and he makes proper complaint to the master, and the master promises to repair the defect, the servant, in reliance upon that promise, may continue the employment and the use of the defective appliance for a reasonable time during which period he is relieved of the burden of assumption of risk, unless the danger is of such imminent character that a reasonably prudent person would not be justified in taking the chances of injury. As we understand counsel, they agree upon the statement of this rule but fail to agree upon its proper application, and the fact that they fail to agree is not surprising when it is recalled that the courts of last resort are unable to agree upon the same question.
Counsel for defendant contend that the rule should be so limited in its application as to exclude from its benefits the servant who is injured through the use of a defective simple tool, and direct our attention to decided cases which lend support to their view. The leading one is Marsh v. Chickering,
The rule has its very foundation in the fact that the appliance with which the servant is required to work is in a defective condition, and, by reason thereof, the hazards of the employment are increased. If the appliance is not defective, there cannot be any room for the application of the rule or for a discussion of its limitations; hence it would seem to follow that, in so far as it limits the application of the rule, the decision of the New York court is obiter dictum. But even so, the case has been followed in other jurisdictions, and was followed by the supreme court of New York in Baumwald v. Trenkman,
Corcoran v. Milwaukee Gaslight Co.,
The ease of Webster Mfg. Co. v. Nisbett,
McGill v. Traction Co.,
In Turkey Foot Lumber Co. v. Wilson,
The force of these decisions is impaired somewhat by the fact that the courts simply ignored the authorities holding the contrary view.
Counsel for defendant also cite Musser-Sauntry L. L. & M. Co. v. Brown,
We have searched these authorities for a reason for the limitation thus imposed upon the general rule, but have failed to find any satisfactory to us. In Marsh v. Chickering, it is said that.the rule which relieves the servant from the assumption of risk after the master’s promise to repair has been given “is one of a just and salutary character, designed for the benefit of employees engaged in work where machinery and materials are used, of which they can have but little knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely familiar.” That language is referred to approvingly in Meador v. Lake Shore & M. S. Ry. Co., Webster Mfg. Co. v. Nisbett and Corcoran v. Traction Co., above. If these courts mean what they say, then the application of the rule to the facts of any given case depends upon the extent of the servant’s knowledge of and familiarity with his working tool, rather than upon the simplicity or complexity of the instrumentality itself. If the rule was intended only for the benefit of laborers using machinery and materials, of which they have but little knowledge, then it sets a premium upon ignorance and stupidity. It denies the right to recover, not only to the servant who uses ■ simple tools, but as well, to every skilled mechanic using the most intricate machinery, if he has the mental capacity and technical knowledge to understand his machine, know its defects and appreciate the danger of using it in its defective condition. If it applies only to the servant using machinery so complicated that even an expert machinist can acquire but little knowledge of it, then the rule is so restricted that it is useless when viewed from a practical standpoint.
In Gunning System v. Lapointe, the Illinois court said: “The cases where the rule of assumed risk is suspended, and the servant exempted from its application under a promise from the master to repair or cure the defect complained of, are those in which particular skill and experience are neees
A rule without reason would not commend itself to anyone, and there must be some rational theory underlying the rule which relieves the servant of the assumption of risk after the master has promised to repair.
Speaking generally, the risk is upon the master in the first instance, by virtue of the contract of employment. The burden shifts to the servant when, with knowledge of the defective appliance and an appreciation of the danger, he voluntarily continues to use it, under the maxim volenti non fit injuria. The effect of the servant’s complaint, then, must be this: “I am unwilling to continue to use the defective tool, because, if I am injured by the use of it, I will be held to have assumed the risk, and I will quit the employment rather than take the chances of injury.” If the master’s promise is to be given any effect whatever, it must be held to be tantamount to saying to the servant: “If you will continue the employment and the use of the defective tool for a reasonable time, I agree to relieve you of the burden of assumption of risk which otherwise would fall upon you.” By continuing the employment in reliance upon that promise, the servant accepts the offer, and a new agreement is created.
In Eureka Co. v. Bass,
In St. Louis I. M. & S. Ry. Co. v. Holman,
In Swift & Co. v. O’Neill,
It is the rule in New York that the promise of a master to repair, when made to induce the servant to continue to work,
In Trotter v. Furniture Co.,
But counsel for defendant insist that, since, in this state, the risk of injury arising from the use of a simple tool is one of the ordinary risks of the employment (Miller v. Granite County Power Co.,
The situation of the servant using the simple tool and the one using the complicated machinery is precisely the same at the moment complaint is made and the promise to repair is given. In effect the servant using the simple tool says: “I will not continue to use this defective appliance, for in ease of injury I will be held to have assumed the risk; hence I will quit the employment rather than take the chances of injury.” And the effect of the master’s promise to repair must be: “If you will continue the employment and the use of the defective tool for a reasonable time, I agree to relieve you of the burden of the assumption of risk which otherwise would fall upon you, by reason of the fact that the risk of injury from the use of a simple tool is one of the ordinary risks of your employment. ’ ’
Some of the leading cases which apply the rule to simple tools as well as to complicated ones, and refuse to recognize the limitation imposed by the New York court, are Fischer v. Chicago, M. & St. P. Ry. Co.,
In the following cases the rule was applied to injuries arising from the use of simple tools without considering the distinction sought to be made by the New York court: Alkire v. Myers Lumber Co.,
In Spencer v. Worthington,
In Indianapolis Union Ry. Co. v. Ott,
In Louisville Holel Co. v. Kaltenbrun,
The decision in Marsh v. Chickering is criticised by the author of the notes to Brouseau v. Kellogg S. & S. Co., in 27 L. R. A. (n. s.) 1053, and is disapproved by Labatt (4 Labatt on Master and Servant, sec. 1355), who says: “It is difficult to see any rational ground upon which the distinction thus indicated can be sustained * * * The conclusion arrived at by the New York court of appeals is possibly to be explained by the fact that its attention was not properly directed to the rationale of the ‘effect ascribed to a promise, as being essentially a stipulation by the master to accept temporarily the responsibility for any accident that may occur. (See secj 1348, subd. a, ante.) It seems not reasonable to suppose that, if due prominence had been given to this aspect of the relations of the parties, the learned judges who concurred in the decision in Marsh v. Chichering would have been more fully alive to the anomaly of the position to which that decision commits them. ’ ’
Under the doctrine announced by the New York court, the servant, whose employment requires the use of simple tools only, has no right to rely upon the master’s promise to repair; hence, after he discovers that his working tools are defective, he has no other alternative but to continue work and bear the burden of assumption of risk or quit the employment, even though it is necessary for what Carlyle calls the “altogether indispensable for daily bread.”
In our judgment there is not any reason for the limitation sought to be imposed upon the rule, and we decline to recognize it.
The judgment is reversed and the cause is remanded for trial.
Reversed and remanded.