Wausau Southern Lumber Co. v. Cooley, 94 So. 228

Wausau Southern Lumber Co. v. Cooley

94 So. 228 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellee was employed by the appellant in the capacity of cutting and sawing logs; appellant being engaged in the manufacture of lumber. The appellee was injured by the use of an ax which had a defective handle. He had used the ax for some days, and had returned it to the shop to have it rehandled, but for some reason it was not re-handled on the morning in question, when the injury occurred, and the ax which had been furnished as a temporary substitute was light and did not suit the plaintiff. On the morning of the injury plaintiff was told by the foreman in charge to take the ax with the defective handle and *338use it until some other arrangement could be made. He carried the ax into the forest, and in sawing a log the saw became cramped, and it was necessary to cut the log on the under side. The plaintiff made a stroke with the ax, and it glanced, and struck his ankle, inflicting an injury for which this suit was brought. The condition of the ax was apparent and was known prior to the injury to the plaintiff. Suit was brought upon the theory that the appellant was liable for the injury because of its failure to furnish the plaintiff with a safe ax with which to work.

The first assignment of error is the refusal of a peremptory instruction for the defendant, and, as the refusal of this instruction presented for consideration the question as to whether the appellant was liable because of furnishing a defective simple tool, and inasmuch as we reached the conclusion that an ax is a simple tool, and that the master is not liable to the servant for furnishing a simple tool which is patently defective, it will be unnecessary to consider the other assignment of error.

In Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S. W. 1030, 40 L. R. A. (N. S.) 837, it was held that a master is not liable for injury to a servant through the use of an ordinary shovel furnished by the master, the round wooden piece at the top of the handle of which is cracked so that it revolves on the iron rod which supports it and pinched his hand, causing a wound which was followed by blood poisoning. At 141 Ky. 41, 131 S. W. 1031, 40 L. R. A. (N. S.) 858, the court, in discussing liability of a master in reference to simple tools, said:

“It must be recognized by every one that the rule of safe tools and appliances should not be extended to every tool and every appliance that is used by laborers and servants in the ordinary everyday affairs of life. There are few persons engaged in employments of any kind who do not at some time or in some way use implements or tools (using these words in their broadest sense) in the performance of their duties or services. Some of these tools and implements are of the simplest character, and are used, in the *339simplest way, and in the performance of labor or service that is free from danger. There is nothing complicated about many of them, and their nature is such that any person of ordinary intelligence can at once use them without instructions or assistance. It often happens that they get out of repair or become defective by use; but the defects are patent to any person who handles them, and generally can be easily and quickly repaired by the servant who is- using them. Implements and tools like these are used in the house, on the farm, and in fact everywhere. They embrace the utensils of the kitchen, many articles used in the ordinary household duties, as well as hoes, rakes, spades, and other like implements in common and daily use on every farm; and it would be going far beyond the reason of the safe appliance doctrine to extend it to a coffee pot with a loose handle, in the ordinary household kitchen, or to a house broom with a splintered handle, or a kitchen hatchet that was dull, or a garden hoe that was broken, or a farm spade that was out of repair, or other implements quite as simple in their make and use. If .the servants in every possible field of labor should be protected by this rule, and have the right to seek damages in the courts for the most trifling injury suffered in the ordinary and usual use of these simple things, the master in every state of case that can be imagined would be held accountable for accident or injury, and thus a useful and valuable rule would be converted into a constant source of vexation and apprehension. The further effect would be to encourage servants to be entirely indifferent to their own safety, and furnish them an ever present incentive to litigation ; and so we think the line .where nonliability begins in a case like this ought to be, in the very reason pf the thing, fixed at some place, for to carry the doctrine of liability everywhere, and enlarge it to embrace everything, would verge on the ridiculous.”

In the ease of Vanderpool v. Partridge, 79 Neb. 165, 112 N. W. 318, 13 L. R. A. (N. S.) 668, it was held by the Nebraska court that the requirement that the master exercise *340ordinary care to provide reasonably safe tools and appliances for his servant had no application where the servant possesses. ordinary intelligence and knowledge, and the tools and appliances furnished are of a simple nature easily understood, in which defects can be readily observed by said servant. In the case note to the L. E. A. report the learned editor of that series in the beginning of the note says:

“The rule of respondeat superior rests upon the assumption that the employer has a better and more comprehensive knowledge than the employee, and therefore ceases to be applicable where the employee’s means of knowledge of the danger to be incurred is equal to' that of the employer. Such is the case where the instrument or tool the defect in which is the cause of the injury is of so simple a character that a person accustomed to its use cannot fail to appreciate the risks inciden^ thereto.”

Many authorities upon the subject are collected in the case note to 13 L. R. A. (N. S.) 668 et seq., and the case note to Parker v. W. C. Wood Lumber Co., 98 Miss. 750, 54 So. 252, 40 L. R. A. (N. S.) 832 et seq., and 3 Labatt on Master & Servant, section 924 (a), and notes. See, also, McMillan v. Minetto Shade Cloth Co., 134 App. Div. 28, 117 N. Y. Supp. 1081; Lynn v. Glucose Sugar Ref. Co., 128 Iowa, 501, 104 N. W. 577; Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854; Mathis v. Stockyards Co., 185 Mo. 435, 84 S. W. 66; Post v. C., B. & Q. R. Co., 121 Mo. App. 562, 97 S. W. 233; House v. So. R. Co., 152 N. C. 397, 67 S. E. 981; Dunn v. So. R. Co., 151 N. C. 313, 66 S. E. 134.

In order to predicate liability in the suit against the master for personal injury, there must be some negligence upon the part of the master which causes the injury. The master is not under duty, as regards a mere simple tool, to furnish a servant with a safe tool; the servant’s knowledge and judgment in such case being equal to that of the master. There are some authorities to the contrary, but we *341are of opinion that the authorities in accord with our holding are the better and sounder cases.

The appellee quotes from Parker v. Wood Lumber Co., 98 Miss. 750, 54 So. 252, 40 L. R. A. (N. S.) 832, an expression:

“Even in the case of a simple tool, the question comes to this: Did the servant know of the defect in the tool, or ought he to have known of it by the use of ordinary care? The doctrine so called does not seem to us to be any new doctrine, properly considered, but merely a new application of t}ie very old doctrine of contributory negligence.”

In that case the court held that the tool was not a simple tool, and the decision was based upon that conclusion, and the expression quoted is mere dictum. A careful examination of the law upon the subject convinces us that the master is not under any duty to the servant as to furnishing a safe tool in the. case of such a simple tool as the one in the case at bar, and, being under no duty, there can be no breach of duty, and hence no liability resulting therefrom.

The judgment will be reversed, and judgment here for appellant.

Reversed, and judgment here.