Blankenship v. A. M. Hughes Paint & Glass Co.
| Decision Date | 13 February 1911 |
| Parties | WM. H. BLANKENSHIP, Respondent, v. A. M. HUGHES PAINT & GLASS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
Cause affirmed.
Boyle & Howell for appellant.
(1) The court should have sustained the demurrer to the evidence. The defendant was not an insurer--its duty was simply to exercise ordinary care to furnish plaintiff a reasonably safe tool with which to work. Goransson v. Manufacturing Co., 186 Mo. 300; Duerst v. Stamping Co., 163 Mo. 607; Franklin v. Railroad, 97 Mo.App. 480; Railroad v. Nelms, 83 Ga. 70. (2) Instruction numbered 1 given for plaintiff was erroneous in this, that it told the jury that their verdict must be for the plaintiff if they found that the tool was defective and not reasonably safe, "in that the edges thereof were worn and battered," the real issue of the case being whether the tool was improperly or too highly tempered. The instruction is broader than the proof. Huston v. Railroad, 129 Mo.App. 576; Heinzle v. Railroad, 182 Mo. 528; Atchison v St. Joseph, 133 Mo.App. 563; Holden v Railroad, 177 Mo. 456; Murray v. Transit Co., 176 Mo. 183; Harrison v. Lakeman, 183 Mo. 581. (3) The language of counsel for plaintiff in his argument to the jury was improper and prejudiced the defendant in the minds of the jury. The objectionable language of counsel complained of was as follows: "A murderous and miserable policy of economy prompted this defendant to improvise this tool that was the cause of plaintiff's injury; a tool that was not used by any other persons in the country; an improper and inefficient tool." And, Beck v Railroad, 129 Mo.App. 7; Franklin v. Railroad, 188 Mo. 533; Rice v. Sally, 176 Mo. 107; Sea v Transit Co., 106 Mo.App. 329.
Frank P. Walsh, E. R. Morrison and James P. Aylward for respondent.
(1) The demurrer to the evidence was properly overruled. Defendant could not rely on the maker to inspect the tool and determine its fitness for use, because the maker was not told of the manner in which it was to be used and in fact assumed that it was to be struck only on the end. Ice Machine Co. v. Keefer, 26 Ill.App. 466. Besides defendant was bound to make a reasonable inspection to determine its fitness for the particular use to which it was to be applied. Tallman v. Nelson, 141 Mo.App. 478; Morton v. Railroad, 81 Mich. 423; Roughan v. B. & L. Block Co., 161 Mass. 24; Railroad v. Elliott, 149 U.S. 266, 37 L.Ed. 728; Railroad v. Huntley, 38 Mich. 537; Ballard v. Mfg. Co., 51 Hun 193. For a failure to exercise reasonable care to furnish a reasonably safe tool the defendant is liable. Duerst v. St. Louis Stamping Co., 163 Mo. 607; Franklin v. Railroad, 97 Mo.App. 473; Booth v. Railroad, 76 Mo.App. 516; Robbins v. Big Circle Mining Co., 105 Mo.App. 78; Goransson v. Mfg. Co., 186 Mo. 300; Shore v. Bridge Co., 111 Mo.App. 278. (2) Plaintiff's instruction No. 1 was not erroneous. There was no evidence that any special duty to inspect rested upon plaintiff. There was ample proof that the edge of the tool was worn and battered at the point from which this chip came. Defendant is liable if the injury was caused by both the worn and battered condition of the tool and its defective temper. (3) Language of counsel to which objection is made must be incorporated in the bill of exceptions, it is not sufficient to copy it in a motion for new trial. Norris v. Whyte, 158 Mo. 20, and cases cited. Exceptions must be preserved in the bill of exceptions to rulings of the court on arguments of counsel. State v. Thurman, 121 Mo.App. 374; Estes v. Railroad, 111 Mo.App. 1; Reed v. Calp, 213 Mo. 577.
This is an action for damages for injury received by plaintiff as the result of the alleged negligence of the defendant.
On August 24, 1908, the plaintiff was employed by the defendant and while he was engaged in the course of his employment in coopering a certain keg he struck a coopering tool with a hammer whereupon a piece of steel broke off the side of the tool and struck him in the left eye, from the effects of the wound he thereby received he finally lost the sight of the eye altogether.
The plaintiff is a corporation owning and operating a paint and glass plant in Kansas City, Missouri.
For cause of action it is alleged, that, the tool which consisted of a piece of steel used for the purpose of coopering barrels was improper and insufficient for the purpose. Various defects are assigned among which was one that the tool was not reasonably safe in that the face was worn and battered and also the edges, and was not properly tempered, in that, it was too highly tempered and thereby rendered too hard and brittle, so that there was danger of the same chipping and small pieces flying off and striking defendant's servants while using the same; that defendant negligently failed and omitted to exercise reasonable care to inspect the said tool and failed to warn plaintiff of its unsafe and dangerous condition; and that defendant negligently failed to adopt, promulgate and enforce adequate rules for the management of the work of the establishment, particularly in and about the use of said coopering tool.
The answer is a general denial, and an allegation of contributory negligence.
The plaintiff at the time of his injury was engaged in filling and coopering small barrels or kegs of paint. While coopering the kegs he would place the edge of it under the hoop and against the barrel and strike the tool from underneath. The keg on which plaintiff was working at the time of his injury was about fourteen inches high and he was working on the second hoop within about six inches from the floor. While he was loosening the second hoop, it being hard to get off, it became necessary to strike the tool a hard blow with the hammer. When the blow was struck a piece of the steel flew off the side of the tool and struck him in the eye.
The plaintiff had been using the tool in question for several months and used others of a different kind prior thereto. Plaintiff testified that he had sharpened the tool on a grindstone, to keep it from slipping off the hoops, and that when he needed a new tool he was directed to go to Mr. Morris to get it; that he was told by defendant's superintendent, Mr. Durham, that when he wanted one Morris was the person to go to; that the tool he had formerly used was battered on the edges and he asked Morris for a new one and got the one in question; that the top of the tool was battered and overhung, but that he did not strike it on top, but on the side; that the chip which struck him did not come from a battered or mashed place on the side of the tool; that the defendant had no system of inspecting tools or any employee that when around examining them; that the side and edge along where this chip came out as well as the other side were flattened and mashed down, so it projected, which was the result of being hammered.
The blade of the tool in question was a flat piece of steel with blunt end and sides and the handle of the same material and all in one piece. And that it was used by placing the point of the blade on its edge or the side against the hoop as the occasion demanded. Prior to the use of this one the defendant had used a tool with a wooden handle. All the tools used by the defendant up to the time of plaintiff's injury had been bought from the Hauck Tool Works, a standard manufactory of tools, and had given satisfaction. The tools of the kind in question were made after a special design of the defendant; and the manufacturer did not know that it was to be worked by using the sides as well as the point.
It was shown by experts this tool was highly tempered and thereby rendered brittle, and as such was liable to chip off when struck by a hammer; and that this quality could have been detected by a reasonable inspection.
The jury returned a verdict for plaintiff in the sum of four thousand dollars. From the judgment the defendant appealed.
Defendant offered a demurrer to the plaintiff's case which the court overruled. The court at the instance of defendant gave an instruction to the effect that, if the injury inflicted was the result of the act of plaintiff in striking the tool accidentally a slanting blow thereby causing the chip to fly off, the plaintiff was not entitled to recover; or that if the injury was the result of a latent defect in the tool which could not have been discovered by an ordinarily careful inspection or test, the finding would be for the defendant. One other instruction was given at the instance of the defendant to the same effect practically as the first, and one upon the burden of proof. Fourteen others were asked and refused.
Instruction one given for plaintiff reads as follows: "The court instructs the jury that the defendant, in this case, was bound, in law, to exercise reasonable care to furnish plaintiff reasonably safe tools and appliances with which to work.
"If therefore, you believe and find from the evidence, that on or about the 24th day of August, 1908, the plaintiff, in the due course of his employment, was engaged in coopering the keg mentioned in evidence, and that the defendant had negligently furnished the plaintiff with a coopering iron or tool with which to perform his work, and that the same was defective and not reasonably safe in that the...
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