77 Miss. 494 | Miss. | 1899
delivered the opinion of the court.
Kent, the plaintiff, a section, foreman of tire defendant company, was furnished by the company with a cold chisel for cutting steel rails when necessary, and while some laborers were engaged in that work under his supervision, a fragment of the chisal wras shivered from it, wdrich hit the plaintiff in the eye, and after great pain and suffering by him caused its loss.
The chisel was made by a reputable foundry, and was 'furnished to the plaintiff by the supervisor of the railroad company, who, upon inspection of it before sending it out, considered it good and sound; the plaintiff, of many years experience in the use of cold chisels, also adjudged it to be good and sound so far as he could tell. The evidence showed that the cold chisel was the customary tool of the defendant company for cutting iron and steel rails, and that it was the usual
The plaintiff offered to prove by one Palmer, of twenty years experience in the track department of railroads, and by Johnson, a blacksmith of eighteen years experience, who had examined the chisel after the accident, that the chisel was defective and dangerous; and further offered to prove by Palmer that the more modern appliance for cutting steel rails is a saw, which is not dangerous, and that it' is especially used in foreign countries, which offered evidence was excluded by the court. And the court also directed a verdict for the defendant.
The proposed evidence of the witnesses, Palmer and Johnson, giving their opinion of the defect in the chisel, from an inspection of it made after it was broken, was impertinent; and the rule of law that railroad companies are not bound to furnish the safest appliances, justified the court in excluding the evidence of Palmer that a saw is a safer tool for the cutting of steel rails.
The ruling of the court that the plaintiff had not made out a case by his evidence is supported by all the authorities that have fallen under notice, and especially by Railroad Co. v. Elliott, 149 U. S., 266, 271; 2 Bailey on Per. Injs., sec. 2639; Railway Co. v. Toy, 33 A. R., 57, s.c. 91 Ill., 474; 3 Elliott on Railroads, sec. 1278.