This аction was brought by the appellee against the appellant in the circuit court of Crawford County to recover damages for personal injuries alleged to hаve been caused by an injury to his eye while cutting a cotter pin with a chisel and hammer at the shops of appellant company. There was a verdict and judgment for the amount sued for, from which is this appeal.
Several questions are presented which we find it unnecessary to decide, as it is onr opinion that the first assignment of error urged by the appellant is well taken, and our determination of that question disposes of the case.
It is claimed, and we agree, that there was no actionable negligencе shown by the evidence, and the court should have given the peremptory instruction requested by the appellant. In arriving at this conclusion, we do not overlook the rule that the evidence on appeal should be viewed in the light most favorable to the appellee and given the greatest weight to which it is entitled, if by so doing the verdict may be sustained. The appellee, Burns, at the time of the injury was at work in appellant’s shops engaged in repairing- a locomotive with the help of one O. N. Meeks'. These two were the only persons present at the time of the injury and the only witnesses testifying regarding the occurrence. Their testimony is not in conflict except in one particular.
The evidence, which is undisputed, establishes the following facts: Appellee was 29 years old and his position with the appellant was that of a “second-class mechаnic”, in which position he had worked for approximately five years. Meeks was his helper at the time of the accident, which occurred during the night, as they were preparing to put truck wheels on the engine. Meeks was working under the direction of the appellee, and was told to place a cotter pin on the rail and hold it therе while Bums cut off the end of it. The cotter pin was a round pin about three or three and a half inches long and about three-eighths of an inch in diameter, with a slit down the middle so that whеn the pin was placed through a hole in the shaft the protruding ends of the pin could be bent back on either side and prevent it.from slipping out. Meeks testified that he was holding the pin with his hand with the end lying on the rail as he had been directed to do; that he did not turn the pin at all, and that it had not moved in any way at the time the appellee struck the final blow cutting off a portion of the pin, which flew out and injured Hm. Meeks stated tliat as tbe blow descended be turned bis bead to one side.
Appellee testified, in substance, tbat be directed tbe pin to be placed and held so tbat tbe slit in it would rest upon tbe rail, and, when it was so placed and beld, be adjusted tbe cutting edge of bis cbisel on tbe pin and fixed it in place by striking- with bis hammer two ligb't blows upon tbe bead of tbe cbisel, thus “setting” it. He tben prepared for tbe blow by wbicb be proposed to sever tbe end of the pin, and stated tbat, as thе hammer was falling, “it seemed as if something attracted tbe attention of Meeks, and be turned bis bead, and at the same time tbe pin was turned”; tbat be bad already started down with the blow, and it was impossible to stop it then. At this time lie was standing down in a pit, and, when tbe pin turned as be delivered tbe blow, one side of it was cut off, wbicb flew out, striking him in tbe eye; that tbe cbisel and hаmmer were his own tools, and tbat be had bad five years’ experience and understood tbe work.
The question presented by this evidence is, does it show tbat Meeks, while helping the appellee, failed to exercise ordinary care? No fixed rule can be stated as to what constitutes “ordinary care,” except tbat it is tbat degree of care wbicb an ordinarily prudent person would exercise under tbe circumstances of tbe case. Care in one case would be negligence in another, and vice versa. Tbat degree of care must be exercised commensurate with tbe danger reasonably to be anticipated. Therefore, ordinary care is a relative term, dependent upon tbe facts and circumstances of each particular case, and tbe degree of care required must always be measured by tbe exigencies of tbe ease under consideration. Meeks v. Graysonia N. & A. R. Co.,
There is no contention that Meeks wilfully moved the pin, and the mere fact that he turned his face aside as the blow was descended does not seem to us to be sufficient to show that he was failing to exercise ordinary care. The cutting off оf the end of the cotter pin was a simple operation, attendant with no particular danger, although, in the light of common experience, it was to be expeсted that the end of the pin, when cut by a violent blow, would fly off some appreciable distance. Ordinarily this would be attended by no particular danger, for it is not to be doubted thаt, if the fragment had struck the person of the appellee anywhere else -but in the eye, no injury would have resulted. That it did strike his eye was a remote mischance which no оne contemplated, or else the appellee, who was experienced, would have taken some precautions other than shown to protect his eyes from flying fragments.
In the case of Booths Flynn Co. v. Pearsall,
It may be that Meeks could have held the pin more firmly and prevented its slightest movement, had he foreseen the consequences, but were they such as would reasonably be expected to probably flow from a slight turning of the pin? We do not think so. Hence, although he might have exercised greater care, it does not appéar that hе should have ordered his conduct by a measure of prudence against every possible risk, but only as to what would ordinarily likely occur.
From the views expressed it follows that the judgment of the trial court must be reversed, and, as the cause appears to have been fully developed, it will be dismissed. It is so ordered.