140 Wis. 497 | Wis. | 1909
The complaint in this case averred that the plaintiff was a locomotive fireman in the employment of defendant. In the performance of such duty he was required to use a pick or hammer for the purpose of breaking the larger pieces of coal preparatory to putting the same in the fire box. In striking the coal with this pick or hammer a piece of coal flew into his eye and injured it. The pick or hammer was defective, in that the outer edges of its face had become worn and rounded from long continued use. The defendant failed in its duty to furnish the plaintiff reasonably safe tools and appliances. The jury found that the pick was in a defective condition and this defective condition was the cause of the plaintiff’s injury, but that the plaintiff was guilty of a want of ordinary care which contributed to his injury.
1. Various errors are assigned by appellant, but, the verdict being in appellant’s favor on all points submitted to the jury except his contributory negligence, only those alleged errors affecting the verdict and relating to contributory negli
The pick or hammer is an implement having a wooden handle about three feet long inserted in an iron cross-head having a hammer face on one end and a pick point on the other end, and is in all respects a simple tool within the rule of Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419, and cases there cited. The hammer end of this pick originally presented a flat surface which had become battered and convex by use. Were the question properly before us, we would not be inclined to hold that the implement was unsafe- or defective in this condition. But, the jury having found that the coal pick was in a defective condition at the time of the accident, the case will be decided upon the hypothesis that this finding is a verity. The third question of the special verdict finding the plaintiff guilty of contributory negligence must bar his recovery unless it ought to be sot. aside and the answer of the jury changed from “yes” to “no” because of lack of evidence to support such finding.
From the plaintiff’s evidence it appears that at the time of the injury he was busy shoveling coal, and in so doing encountered a very large lump of coal which he tried to move with his shovel.
“That was the first time I thought of a coal pick, so I reached up to the usual place where coal picks are kept, right up handy on the right side of the engine — I always carry mine — used to. I reached up there and took the coal pick and got hold of the coal pick, and I struck the coal and was strudj in the eye. I reached up on the right-hand side of the engine and got the pick and stepped down and struck it, and tried to bréale it so it would all come out. It could not como out the way it was. It was too big; too long; and the first blow I struck it flew up and struck me in the eye.”
He had not prior to that time ascertained whether there was a pick on the engine or not, evidently presuming that the
The question of the contributory negligence of one injured ■by the negligence of another is usually a question of fact. The question whether one seizing a pick, a hammer, or an ax, and striking a blow with it without even glancing at the condition of the implement, is in the exercise of ordinary care, seems to be peculiarly a question of fact for the jury. The more general rules that there is no duty on the part of the servant to inspect machinery and appliances furnished by the master, and that the servant may rely upon the master to furnish safe tools and appliances, do not at all conflict with this conclusion. Inspection means a somewhat careful ■or critical examination. Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904; Texas & Pac. R. Co. v. Allen, 114 Fed. 177, 52 C. C. A. 133. Notwithstanding the servant may rely upon the master discharging his duty to furnish safe tools and appliances and is not called upon to inspect them before using, still, if as a matter of fact ordinarily prudent and careful persons are used to glance at the implement with which they strike before striking a blow under the circumstances in this case, and the plaintiff neglected to do so> and -such neglect contributed to cause the injury in question, he may well be found guilty of contributory negligence.
It is said that contributory negligence must proximately have contributed to produce the injury complained of, and
2. The only facts found by the verdict relative to the-negligence of the defendant were as follows: (1) The pick that plaintiff used at the time of the accident was in a. defective condition; (2) such defective condition was the proximate cause of plaintiff’s injury. We have seen that the-
3. Error is assigned upon the following instruction to the • jury relative to the third question of the special verdict:
“By 'ordinary care’ is meant such care as the great mass of mankind ordinarily exercise under the same or similar circumstances, and if you find the pick was defective, and further find that plaintiff by the exercise of ordinary care could have examined it and observed its condition before using it, then you must find this question in the affirmative,, or, if you find that he was otherwise guilty of any want of ordinary care that contributed to produce his injury, then you will answer the question in the affirmative.”
The principal criticism submitted is upon the use of the Word “could.” Appellant contends that the words used at this place should have been “ought to.” But what one could
. 4. The instructions -relative to what is meant by a defective condition cannot he assigned as error by the appellant because the jury found in his favor upon that point.
5. Error is assigned on the admission of the evidence of Edgell and McDonald. The former, after testifying that he used the same coal pick in cracking coal from the time the plaintiff was hurt until the train reached its destination, was asked: “Did you find any difficulty in using it for that purpose?” and he answered, “Not a particle.” “Did you find that it caused you any more danger to break coal with that pick than any other pick that you had used for a similar purpose?” and he answered, “No, sir.” McDonald, another witness, testified that he used the pick on the run next day, and 'was asked, “Did you find in the use of that pick that it increased any hazard of splinters flying from other picks that you had used?” to which he answered, “I couldn’t see any difference in it to other picks.” This testimony related to the question whether or not the pick was defective, thereby causing splinters of coal to fly. As we have seen, this finding was in favor of the appellant; consequently the appellant was not prejudiced by the admission of the evidence. It is suggested, however, that this evidence has some bearing on the question of the contributory negligence of the plaintiff. We think not. The plaintiff’s contributory negligence, if it existed, and it was found by the jury to exist, consisted in reaching for the pick, swinging it up and striking a blow with it without even a glance at the pick to ascertain its condition.
By the Court. — The judgment of the circuit court is af-' firmed.