127 P. 474 | Okla. | 1912
This suit was filed by Frank H. Mayne in the district court of Choctaw county against the St. Louis San Francisco Railroad Company on October 8, 1909, for the recovery of damages for personal injuries alleged to have been caused by the negligence of the railroad company in providing plaintiff with a defective tool with which to work.
It appears that plaintiff was a carpenter by occupation, having had some twelve years' experience in such trade; that he had worked for defendant about three years and in the repair shops at Hugo for more than a year; that on the day of the *49 injury plaintiff undertook to bore an inch hole through a piece of timber two inches thick, ten inches wide, and 25 inches long, with a hand boring machine belonging to defendant and found there in the shop. The only negligence claimed, shown, or attempted to be shown is that the auger bit which worked in this hand boring machine was dull and the cutting edge of the bit considerably worn down from having been sharpened with a file. It is not claimed that the machine or the bit were otherwise out of repair. It is shown that the machine is a simple contrivance, no more complicated in its mechanism than the ordinary brace and bit. While using it upon the day in question, plaintiff lay a heavy piece of timber upon two wooden saw-horses 23 inches high. Upon this piece of timber he placed the smaller piece which he was working upon. On top of that he put the boring machine, sitting astride it, and clamping it with his legs. In operating the machine, holding to its wooden handles, he pulled with force in turning it, which caused it to move under him and he toppled over and fell, striking his side against a doorknob in close proximity to where he was working. Plaintiff recovered a judgment of $500, to review which this proceeding in error was instituted.
At the conclusion of plaintiff's evidence defendant demurred thereto, which being overruled, it offered its testimony, and at the close of all the evidence asked the court to give the jury a peremptory instruction in its favor. The refusal of the court to so charge the jury is the serious question presented here. This involves the doctrines of negligence and inspection as applied to a master furnishing the ordinary simple tools used in common labor to his servant. On this question Judge Bailey in his work on Personal Injuries (1 Bailey, Personal Injuries [2d Ed.], sec. 160), under subtitle of "Ordinary Tools," says:
"The question as to how far, if at all, the duty of the master extends to furnishing and inspecting ordinary tools, such as hammers, ladders, etc., is the subject of considerable conflict in the decisions, and reference should also be made to the subdivision on inspection. There is also much diversity of opinion as to what shall be considered as an ordinary tool or implement. It has been held that a statute rendering the master liable for defective 'machinery' *50 is not extended to a case of injury to an employee arising from the use of ordinary tools such as a hammer. It was stated: 'We cannot hold, for in our opinion it is not the law, that an employer is liable to a servant when he furnishes him with an axe, a wagon, a saw, a hammer, or any other tool which appears to be first class, and which subsequently, by some latent defect, breaks and injures the servant. If such were the law, every farmer, contractor, or other employer would be liable to his employee when he furnished him tools and they broke and injured him on account of some latent defects which could not be ascertained by the exercise of ordinary care.' In reference to the general rule, it was said: 'It is one of a just and salutary character, designed for the benefit of employees engaged in work where machinery and materials are used of which they can have but little knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely familiar.' * * * Generally speaking, in the case of simple tools, no liability rests upon the master for the ordinary perils resulting from their use, nor for those latent and ordinary defects or weaknesses which by reason of the common usual character of the appliance are presumed to be known by all men alike; but such exemption is based on the condition that the defect and peril are such that no superiority of knowledge of the master over the employee exists or can be presumed."
And in 3 Elliott on Railroads (2d Ed.), sec. 1278a, under title "Simple Tools," we extract the following:
"Many authorities are cited, and the rule is thus stated in a recent case: 'When the appliances or machinery furnished employees are at all complicated in character or construction, the employer is charged with the duty of making such reasonable inspection as is necessary to detect defects. But the master is under no duty to inspect simple or common tools, or to discover or remedy defects arising necessarily from the ordinary use of such instruments."
In the case of Martin v. Highland Park Mfg. Co.,
"Surely, it cannot be seriously contended that every employer is responsible for injuries occurring from improperly tempered *51 axes, hoes, scythes, trace chains, lap links, bridle-bits, etc., the imperfections of which could not be known till used, or for defective whiffle-trees, axe-helves, hoe-helves, hand-spikes, plow-lines, and such like (the defects of which would be first discovered by the party using them), unless the employer is shown to have had knowledge of such defects. If such be the rules of law, then the contentment of the farmer must give place to anxiety and dread lest injury, resulting to a servant from a splintered hoe-helve or hand-spike, defective bridle-bit, whiffle-tree or plow-line, et id simele, may at any time occur, and sweep from him his farm and belongings in compensation of the damage done. To the same experience would the contractor expect to be subjected, should a defective nail, while being driven by one of his carpenters, break and do injury, to which doctrine we cannot subscribe."
And in the case of Webster Mfg. Co. v. Nisbett,
"In an action for a personal injury occasioned by a defective ladder used by a watchman in lighting and extinguishing lamps at street crossings, the court said: 'The fact that he notified the master of the defect and asked for another implement, and the master promised to furnish it, in such a case does not render the master responsible if an accident occurs. A rule imposing liability under such circumstances would be far-reaching in its consequences, and would extend the rule ofrespondeat superior to many of the vocations in life for which it was never intended. It is a just and salutary rule, designed for the benefit of employees engaged in work where machinery and materials are used of which they have little knowledge, and not for those engaged in ordinary labor, which only requires the use of implements with which they are entirely familiar.' The plaintiff in the case at bar was of the latter class of laborers, and the work in which he was engaged was not of a character which would entitle him to the protection of the principle referred to, as applied to the use of complicated machinery. * * * No contrivance could be simpler in its construction than this five-foot ladder — not even a *52 hoe, an axe, or a spade. Appellant had at least equal knowledge with the company as to the nature and condition of the ladder."
The following additional cases apply the doctrine where the tool was a ladder: Marsh v. Chickering,
The rule has been applied in "hammer" cases in Webster Mfg.Co. v. Nisbett,
"An implement having a wooden handle about three feet long, inserted in an iron cross-head, having a hammer face on one and a pick point on the other end, is a simple tool, which the master need not inspect."
In Potter v. C., R.I. P. Ry. Co., 46 Iowa, 399, a pole or stick used as a temporary axle was held to be an ordinary tool. In Gillaspie v. Union Iron Works,
By the Court: It is so ordered. *54
