Allen Gravel Co. v. Yarbrough

• Citation: 98 So. 117,133 Miss. 652
• Decision Date: 10 December 1923
• Docket Number: 23239
• Court: United States State Supreme Court of Mississippi
• Parties: ALLEN GRAVEL CO. v. YARBROUGH

98 So. 117

133 Miss. 652

ALLEN GRAVEL CO. v. YARBROUGH

No. 23239

Supreme Court of Mississippi

December 10, 1923

(In Banc.) January 1, 1920

MASTER AND SERVANT. Employer not liable for injuries from use of simple tool; statute as to assumption of risk inapplicable in case of simple tool.

In order to predicate liability against a master for personal injury to the servant, there must be some negligence on the part of the master which results in injury. The master is not under duty, as regards simple tools, to furnish the servant with a safe tool; the servant's knowledge and judgment in such case being equal to that of the master. Section 504 Hemingway's Code, does not apply to such case, as there is no negligence of the master.

SMITH C. J., and HOLDEN, J., dissenting.

HON. C P. LONG, Judge.

APPEAL from circuit court, of Tishomingo county, HON. C. P. LONG Judge.

Suit by Dan Yarbrough against the Allen Gravel Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

T. A. Clark, Charles L. Neely and J. A. Osoinach, for appellant.

It is the contention of the appellant that the court should have sustained the motion for peremptory instruction for the defendant, and that section 504, Hemingway's Code, has no application to the case at bar for the reason it has not been shown that the defendant was guilty of any negligence.

We take the position that the wrench used by the plaintiff when he was injured was a simple tool and that plaintiff possessed ordinary intelligence and knowledge, and that wrench furnished if defective was easily understood by the plaintiff and his knowledge of the defect in the tool and using the same with this knowledge is not negligence on the part of the master.

In 18 R. C. L., page 563, paragraph 74, we find the following statement of the law laid down relative to simple tools: "Where the tool is simple in construction, so that defects therein can be discovered without special skill or knowledge, and without intricate inspection, the servant is as well qualified as any one else to detect defects and to judge of the probable danger of using such tool while defective; and, the tool being in the possession of the servant, his opportunity for inspection is better than that of the master."

In the case of Wausau Southern Lumber Company v. Cooley, 94 So. 228, is a case exactly in point with the case at bar, in which the appellee was injured by the use of an ax which had a defective handle. He had used the ax some days, and had returned it to the shop to have it rehandled, but for some reason it was not rehandled 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 use it until some other arrangements could be made. 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 injury because of its failure to furnish plaintiff with a safe ax with which to work.

The assignment of error considered in the Wausau Southern Lumber Case, supra, was the refusal of the court to grant the peremptory instruction asked by 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 that the master is not liable to the servant for furnishing a simple tool which is patently defective.

The court in deciding the Wausau Lumber Case above referred to, called attention to what the court of Kentucky held in the case of Stirling Coal & Coke Company v. Fork, 141 Ky. 40, 131 S.W. 1030, 40 L. R. A. (N. S.) 837, 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 revolved on the iron rod which supports it and pinched his hand, causing a wound which was followed by blood poisoning. In the same case the court discussed fully the liability of the master in reference to simple tools.

The court held in the Wausau Lumber case that: "In order to predicate liability 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."

The case of Bear Creek Mill Company v. Fountain, 94 So. 230, was a case of a defective chisel which sloughed off, injuring the plaintiff and the court held that on the simple tool proposition this case comes within the authorities reviewed and announced in the opinion handed down in Wausau Southern Lumber Company v. Cooley.

So it is a reasonable conclusion that if the master is not liable for injury for the furnishing of a defective simple tool then there can be no negligence on the part of the master for furnishing a defective simple tool which is patent, and which is known by the servant to be defective, more especially when the servant is an old experienced man with tools of the kind with which he was injured, and therefore section 504, Hemingway's Code, could not apply because the master was not guilty of any negligence.

J. A. Cunningham, for appellee.

We join issue with the appellant and contend that the trial court ruled correctly in submitting the matter as a question of fact for the jury and the jury properly found for the plaintiff, and the judgment should be sustained.

In the first place one of these large wrenches with a long handle, to handle heavy bolts on a railroad track is necessarily a more or less complicated instrument. It is shown by the evidence of the appellee that this wrench was in bad condition, and it is shown by him that Mr. Howard, foreman, knew the wrenches were in a bad fix, and said that something must be done or get some new ones. Appellee claimed to be working under direct orders of his foreman, and claimed to be exercising every care possible for his safety. So this man's evidence clearly shows that these wrenches were old and worn, that the metal was soft, and that they were dangerous for a man to work with.

We think there are two reasons why the appellee's knowledge of this danger would not bar him from recovery: 1st, he was under the orders of his superior; 2nd, both the assumption of risks on the part of employees and the old rule of contributory negligence have been abolished as a complete bar to recovery where there is any negligence on the part of the master. This cause was submitted properly to the jury to pass upon, and presented the proper theory of comparative negligence, and the appellant has no right to complain.

This court held in Parker v. Wood Lumber Company, 54 So. 252, that a cant hook does not come in the class of simple tools and brings a clear distinction between it and the chopping ax referred to in the Wausau case, 94 So. 228.

Let us compare for a minute the mechanical principle involved in a track wrench and the cant hook. The Parker case shows that the cant hook is a tool having a handle of some feet length which is, in the principle of mechanics, the lever. The log sought to be turned is the base, and the hook that catches hold of the log serves as a fulcrum. This mechanical instrument is operated by applying the weight and strength of the human body. This jeopardizes the body in case of a slip so as to make of the cant hook too dangerous a tool to be classed with the simple tools. Now take the track wrench for comparison. It has for a base the tap on the heavy bolts of this track, and for a fulcrum the jaws of this heavy, ponderous wrench, and is operated by applying the weight and strength of the body to the lever, just in the same manner and with the same risk, and involving the same mechanical principles as a cant hook. In other words both of these instruments involve the very same mechanical principles and are used in exactly the same posture and application of the body, and involve the same nature of risk. So the track wrench from the very nature of its construction and use cannot be considered a simple tool, just as in the case of the cant hook.

While there is a strong controversy about the condition of the tool between the witnesses of the appellant and those of the appellee, the jury adopted for the truth the evidence showing that the tool was known to be defective by appellant.

Argued orally by T. A. Clark for the appellant.

ETHRIDGE, J. SMITH, C. J., dissenting.

OPINION

ETHRIDGE, J.

The appellee was plaintiff in the court below, and brought suit for a personal injury, alleging that at the time of the receipt of the injury he was employed by the defendant company as track repairer, and as such he was ordered to take a certain wrench and put in some bolts in haste that...