129 Tenn. 30 | Tenn. | 1913
delivered the opinion of the Court.
The defendant in error, Black, brought this suit to recover damages for injuries alleged to have been sustained by him while he was in the employ of the plaintiff in error. He was foreman of a painter’s crew, and when descending a ladder from the roof of a house on which he was at work, one of the rounds broke and he had a fall, as the result of which he sues.
There was a judgment in his favor for $700 in the court below, which was affirmed by the court of civil appeals. The case is before us on writ of certiorari, granted, to the action of the latter court.
A motion for peremptory instructions in its favor was made by the defendant below, which was overruled by the trial court. It is with reference to this action of the trial court that the principal controversy has been waged in this court and in the court of civil appeals.
The first ground upon which the motion is predicated is that a ladder, such as the one used by defendant in error, is a simple tool, and it is insisted that defendant in error assumed the risk of its use, and the master owed him no duty of inspection in regard to the same.
The ladder which broke seems to have been a portion of a sectional ladder. There was nothing complicated about it, and only this particular section was in use when defendant in error had his fall. Such a ladder so used is a simple tool, and a servant ordinarily does assume any risk incident to its employment. We
It was said in this case that: “An ordinary ladder falls within the class of simple tools, in respect of a defect in which the employer is held not liable on the ground that a defect in such a simple tool must be obvions to its nser by whom any risk of danger therefrom must be held to be assumed.”
In the case nnder consideration, however, proof was introduced by plaintiff below tending to show that the superintendent of plaintiff in error had been notified of a defect in this ladder by another foreman who had formerly nsed it. This foreman testifies he discovered that the ladder was defective, and refused to employ it in his work, that he was questioned by the superintendent as to why he put it aside, and that he' (the foreman) then called the attention of the superintendent to the defects. The foreman testifies, further, that the superintendent differed from him as to the condition of the ladder, and insisted that it was safe. All this happened a short while before plaintiff below sustained his fall.
This proof takes the case out of the authority of Silvey v. Nixon Mining & Drill Co., supra, in so far as peremptory instructions are concerned.
The general principle is that a master is bound to inspect tools or appliances furnished by him to his workmen, and to keep them in sufficient repair. If, however, the tools or appliances are common or sim-
The master’s opportunities for learning of a fault in a tool of this hind are no better than the opportunities of the servant. By reason of the character of such an implement, no superiority of knowledge on the part of the master exists, or can be presumed, as to defects therein. The foundation of the simple tool doctrine is the assumption that the knowledge of the master and servant must be equal.
Such a presumption cannot be indulged where the master has actual notice of a defect, where the proof shows his knowledge is superior. If the master is, as a matter of fact, cognizant that a tool with which he furnishes an employee is in such a condition as to render it use by the employee dangerous to the latter, he will be liable for an injury sustained by the employee in the use of such an implement, where the defect is not known to the employee, and is not of such a nature as to be discovered by that observation which would naturally accompany its use. Guthrie v. Railroad, 11 Lea, 372, 47 Am. Rep., 286; Stork v. Charles Stolper Cooperage Co., 127 Wis., 318, 106 N. W., 841, 7 Ann. Cas., 339; Mercer v. Atlantic Coast Line R. Co., 154 N. C., 399, 70 S. E., 742, Ann. Cas. 1912A, 1002.
In the latter ease it is apparently held that the duty of a master to exercise ordinary care to furnish rea
Although the master is not required to inspect simple tools, previously furnished to the employee, to discover defects of which the employee using such implements should be aware, and although generally no inspection of a simple tool may be necessary at the time it is delivered to an employee, yet if the master furnishes such a tool, with a dangerous defect of which, he has actual knowledge, he is negligent. He should not he permitted to expose the servant to such a risk,, particularly if the defect is of such a character that it might he overlooked by the servant. There is testimony in this record that the defective condition of the round of the ladder which broke was not readily discoverable.
For the reasons above stated the trial judge properly overruled the first ground of the motion to direct a verdict.
It is next urged that the injuries of the defendant in error were sustained as a result of his contributory negligence. It is said that he was descending this ladder at the time he fell, face foremost; that in this way, he put all his weight on the rounds of the ladder, and was not in a position to hold to the sides of the ladder with his hands when the round broke, as he would have been if he had come down backwards.
It is insisted that the proper use of a ladder is of common knowledge, and that the court should view the act of defendant in error as it would the act of a person who jumps from a moving train, and hold him guilty of contributory negligence without proof. We think, however, there might be some reasonable difference of opinion as to the proper manner in which workmen may use a ladder. They frequently ascend and descend with material and tools in their hands, without holding, and are expected so to do. While we know it would have been safer for defendant in error to have descended this ladder backwards, with his hands on the rails, yet we would not be justified, upon our own knowledge, in imputing such negligence to him on account of the manner of his descent, under the facts and circumstances of this case, as to defeat his action. ,
The question of contributory negligence, as well as the question of negligence, is ordinarily for the jury. Even though the facts be undisputed, if intelligent minds might draw different conclusions as to whether,
We must decline, therefore, to say that the defendant in error as a matter of law was guilty of such contributory negligence as to defeat his suit. This question should have been left to the jury under a proper charge.
The defendant below offered several requests presenting its theory as to the use of simple tools, and as to the contributory negligence of the plaintiff there. These requests were refused by the circuit judge. While, for reasons stated above, a verdict should not
The case will accordingly be reversed, for errors in the charge, and remanded for another trial.