105 Mo. App. 78 | Mo. Ct. App. | 1904
The plaintiff sues to recover damages sustained by the loss of one of his eyes alleged to have been the result of defendant’s negligence while he was in its employ.
The evidence tends to show that defendant was engaged in mining at Oronogo, Jasper county, Missouri, and in cleaning and reducing zinc ores for market; that plaintiff in September, 1902, was in the employ of defendant engaged in feeding what is called a crusher, a
The general tendency of the testimony on both sides was to the effect that all hammers of the kind in question would wear away and break off in small pieces by use, some more than others. It depending on how they were tempered. Some of the witnesses for defendant testified that they preferred an old worn hammer to a new one. It also appeared that hammers were often used in the business until they were much worn and reduced in weight.
The jury returned a verdict in plaintiff’s favor for $500. None of the instructions are preserved in the record and the only question presented by appellant is that the court erred in refusing defendant’s demurrer to plaintiff’s evidence.
The contention of defendant is, that as it furnished an instrument with which to perform his labor that was
It is well settled law that, ‘ ‘ The servant in entering* the service of his master assumes the risks that ordinarily and usually are. incident to the business being conducted by the master.” But it is also well settled that, the master is bound to furnish his servant with reasonably safe instrumentalities with which to do his work. The contention here is, that the plaintiff knew the defects of the hammer and therefore he is not entitled to recover. But the rule is that “if the servant knows, or by the exercise of ordinary care could know,
The question is, not what would be a safe hammer, but, what would constitute one that was reasonably safe ? Nor, whether it would be unsafe because it had been used for a considerable length of time, but, whether from long use it had become unfit to be longer used in the exercise of care and caution? There can be no doubt but what the continued application with great force of a steel hammer upon a hard substance like rock, whether the metal be properly tempered or not, will eventually cause disintegration of the metal. This is a fact well known and defendant must be held to such knowledge. That defendant knew the condition of the hammer in question there can be no doubt, and it therefore became a question for the jury whether under all the evidence it was reasonably safe to.be used by the exercise of due care.
Cause affirmed.