Hefferen v. Northern Pacific Railroad Company
| Decision Date | 02 March 1891 |
| Citation | 48 N.W. 1,45 Minn. 471 |
| Parties | Patrick Hefferen v. Northern Pacific Railroad Company. Thomas Hefferen, an Infant, by his Guardian, v. Same |
| Court | Minnesota Supreme Court |
A motion for a reargument of this case was denied April 9 1891.
Actions brought in the district court for Crow Wing county and tried before Mills, J., (acting for the judge of the 15th district.) In the first case plaintiff had a verdict of $ 3,000, and, in the second, of $ 7,000. In each case the defendant appeals from the judgment.
Judgments reversed, and new trials granted.
John C Bullitt, Jr., for appellant.
W. H Adams and J. B. Douglas, for respondent.
These two actions are for the recovery by a father (Patrick) and by his minor son (Thomas) of damages for an injury suffered by the son while engaged as a servant of the defendant in its shops at Brainerd. The father seeks to recover for loss of service of his son and for expenses to which he was subjected by reason of the injury; the son, for the personal injury to himself. The facts in the two cases are substantially the same, and both may be considered together. When the accident occurred (December, 1886) Thomas was 17 years old. He had been for about two years and a half at work for the defendant, -- at first in the building of the shops, and after that in the shops. His work in the shops had been of a somewhat miscellaneous character, including the cleaning of machinery, working in blacksmith and boiler shops, operating a steam-hammer, pointing bolts, heating rivets, and, as he says, doing whatever he was directed to do. His father was a machinist in the same shop. On the occasion under consideration the foreman had ordered Thomas to go to the engine-house to work with one Torkleson cutting off the heads of rivets on the tank of a locomotive. He found Torkleson already there, with the tools which they used. These consisted of a hammer and what is called a "side-set." This is a tool designed to be used for such purposes. It is made of steel, has a cutting edge, and the opposite side, which may be designated the "head," is formed for and intended to receive the blow of a hammer. A handle is fitted to it, by which it is held by one person, with the cutting edge against the rivet or substance to be cut, while another strikes the head of the side-set with a hammer. On this occasion Thomas at first used the hammer, while Torkleson held the side-set. Then they changed, and, while Thomas was holding the side-set and Torkleson using the hammer upon it, a thin scale of steel broke from the head of the side-set as the hammer fell upon it, and was driven into the plaintiff's eye.
The cases show no cause of action, unless it be negligence on the part of the defendant in respect to the condition of the side-set. It does not appear that Torkleson was not a competent, skilful workman; and even if, on this occasion, he was negligent, that would not justify a recovery. One of the ordinary risks incident to such service is that of the negligence of fellow-servants, and this risk a servant takes upon himself as incident to his service, even though he be a minor. King v. Boston & Worcester R. Co., 9 Cush. 112; Curran v. Merchants' Mfg. Co., 130 Mass. 374; Brown v. Maxwell, 6 Hill 592; Gartland v. Toledo, etc., Ry. Co., 67 Ill. 498; Chicago & Great Eastern Ry. Co. v. Harney, 28 Ind. 28; Ohio & Miss. R. Co. v. Hammersley, Id. 371; Fisk v. Central Pac. R. Co., 72 Cal. 38, (13 P. 144.) Nor is there ground for complaining that the plaintiff was required to do work of a more dangerous character than that which was within the scope of the service for which he was employed, or such as was unsuited to his years and experience.
The evidence tended to show that the head of this side-set had become much worn and battered, the pounded surface having become rounded over and a ragged edge formed; and that pieces of the metal were more likely to be broken from it than would be the case if it were not in that condition, although this is liable also to occur even with a tool not thus worn. This condition of the tool was the ordinary result of use. The uncontradicted evidence showed that the defendant kept a tool-repairer in the shops, whose business it was to repair the tools; that the defendant kept a full supply of tools of this kind in a closet and scattered about the shop; that when a workman was to use a tool he would get it for himself, selecting such as he required; and that, when a workman found that a tool needed to be repaired, he would take it to the tool-repairer for that purpose. There was nothing to show that in selecting tools for use the workmen had not opportunity to act deliberately, and to select such as might be fit for use in the work to be done.
Under the circumstances here presented, we are of the opinion that the recovery cannot be sustained, unless the minority of Thomas Hefferen affects the result. For the present we will disregard that feature of the case, and consider it as it would have been if he had been of full age. The defect was as much the ordinary and natural result of the use of the tool as the dulling of the cutting edge of it would be. The defect, and whatever risk there may have been, were perfectly apparent; and if a workman should of his own choice, and unnecessarily, use a tool thus plainly defective, when others were provided for his use, he is not absolved from the consequences of his own choice. It cannot be said to be the duty of a master, under ordinary circumstances, who provides and keeps proper tools for the use of his servants, to see to it that all such as from use become obviously unfit for service are removed beyond the reach of his servants. The servant is no less bound to be careful concerning his own safety than is the master; and, where proper instruments are provided for the use of the servants and their ordinary duties require and enable them to select such as are suitable, they must act with reasonable discretion. Under such circumstances, it is a want of reasonable discretion for...
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