This is an action brought by the plaintiff to recover damages for personal injuries which he alleges resulted to him from the negligence of the defendant. A trial before the court and a jury resulted in a verdict and judgment against defendant, from which it has appealed.
The principal question presented arises upon the sufff
The principal ground of negligence relied upon by plaintiff to show the liability of defendant is that the pneumatic hammer was defective and unsafe, in that it did not have any. wire attachment to the rivet set, to keep it from being violently thrown out of and away from the hammer, when the air happens to be applied and it is not being held against a rivet or solid surface, which wire attachment plaintiff contends is necessary to the reasonable safe use of the hammer. Motions for nonsuit and for a directed verdict made by defendant’s attorney at the close of plaintiff’s evidence, and also at the close of all the evidence, being denied, the defendant appeals. The error assigned upon the court’s disposition of these motions involves only the sufficiency of the evidence, showing defendant’s negligence in its failure to have the wire attachment on the hammer, to sustain the verdict.
The evidence conclusively shows that there was no wire attachment upon the pneumatic hammer attached to the rivet set to prevent it being thrown from the hammer with con
It is claimed by respondent that a wire attached to the rivet set in such manner as is common in the use of the hammer by structural iron workers is a safety device, and will arrest the flight of the rivet set, at or very near the end of the hammer and thus prevent it being thrown, as it otherwise would be, with sufficient force to injure a person, as it did injure him in this instance. Appellant claims that the wire attachment is used only in riveting structural iron work where it is being carried on at some distance above ground, or on bridge work, and is simply a device to save time and prevent the necessity of descending to recover the rivet set, when accidentally ejected; that it is not a safety device, and is of no practical use for safety purposes, or as a protection to the person holding the bar against the rivet for the application of the hammer by the operator.
The evidence is somewhat in conflict upon these questions, but there was competent evidence tending to show, that the wire attachment was quite an effective safety device, especially in insuring the safety of the person holding the bar against the rivet, and is in common use in connection with the pneumatic hammer in structural iron work; that this was structural iron work, though not being carried on at a distance above the ground; that the wire attachment is of easy application and does not appreciably lessen the effectiveness of the hammer or interfere with its use; that when
Learned counsel for appellant also contend that the risk was assumed by respondent. The evidence shows that respondent was twenty years old and had considerable experience in iron work; he was, however, but little acquainted with the pneumatic hammer. He testified that he “did not know it (the wire) should be used,” and never worked with any other pneumatic hammer than this one. We think this, like appellant’s negligence, was a question of fact for the jury.
The contributory negligence of respondent is also urged as a defense. Upon this question the evidence is very meager and also conflicting. It was clearly not such as to enable us to say, as a matter of law, that appellant was relieved of liability by reason of respondent’s contributory negligence.
Other alleged errors relate only to matters within the court’s discretion occurring during the trial, and do not appear to us to have been prejudicial to appellant’s rights. They are called to our notice only by being claimed as prejudicial without argument or citation of authorities, hence we do not feel called upon to discuss them. We find no error in the record, and therefore affirm the judgment.
Rudkin, C. J., Dunbar, Crow, and Mount, JJ., concur.