Anderson v. The Forrester-Nace Box Co.

• Decision Date: 07 December 1903
• Parties: JOHN ANDERSON, Respondent, v. THE FORRESTER-NACE BOX COMPANY, Appellant
• Court: Kansas Court of Appeals

77 S.W. 486

103 Mo.App. 382

JOHN ANDERSON, Respondent, v. THE FORRESTER-NACE BOX COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 7, 1903

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

REVERSED.

Judgment reversed.

Harkless O'Grady & Crysler for appellant.

We cite the following authorities upon the issues in this cause Lee v. Gas Co., No. 5594, K. C. Court of Appeals Jan. term, 1902, (not yet reported); Watson v. Coal Company, 52 Mo.App. 366; Shea v. Railroad, 76 Mo.App. 29.

John G. Park for respondent.

(1) It is the duty of the master to exercise ordinary care to provide the servant a reasonably safe place in which to work, and reasonably safe appliances with which to work. Welden v. Railroad, 67 S.W. 698, 93 Mo.App. 668; Prophet v. Kemper, 68 S.W. 956, 95 Mo.App. 219; Nash v. Dowling, 93 Mo.App. 156; Pauck v. Beef Co., 159 Mo. 467. (2) The basement being dark and gloomy and not properly lighted, it became a question for the jury whether it was a reasonably safe place for plaintiff to work in, and whether defendant in sending plaintiff there was in the exercise of ordinary care. Adams v. McCormick Mach. Co., 68 S.W. 1053,1056, 95 Mo.App. 111; Wendler v. House Fur. Co., 165 Mo. 527; Hester v. Dold Pkg. Co., 95 Mo.App. 16. (3) In furnishing the nails ordinarily used in the machine and covered with a substance calculated to make the hatchet glance and prevent a direct and safe blow, defendant did not furnish reasonably safe appliances. It was a question for the jury whether such nails were reasonably safe. Nash v. Dowling, 93 Mo.App. 156; Edwards v. Asphalt Co., 92 Mo.App. 221. (4) Plaintiff did not as a matter of law, assume the risk of injury from the use of these cement covered nails in defendant's dark basement. Adams v. McCormick Mach. Co., 68 S.W. 1053, 95 Mo.App. 111; Welden v. Railroad, supra; Nash v. Dowling, supra; Huhn v. Railroad, 92 Mo. 447.

OPINION

ELLISON, J.

This is an action for injury to one of plaintiff's eyes. He prevailed in the trial court.

The cause of complaint as charged in the petition is that plaintiff was in the employ of defendant as a carpenter in and around its box factory and at the time of the accident was laying plank flooring in the basement of defendant's building, and in attempting to drive a nail into a stake which he had set by the side of a stringer, it glanced or sprung from its place and struck and broke his eye-glass so that the broken fragments entered the eye itself, inflicting a painful injury. The negligence charged was that the basement was so dark that he could not see clearly the hatchet and nail so as to accurately aim his strokes. And that the nails (which were furnished by defendant) were a new kind covered with cement and were slender and springy, so that they had a tendency to spring from their place while being driven. That the cement was liable to cover the face of his hatchet and render it liable to glance from the head of the nail. It is further charged that defendant knew, or might have known, of the darkness of the basement in time to have provided lights.

The evidence as given by plaintiff in his own behalf shows that he has no cause of action. He was a carpenter of many years' experience. He had been working for defendant several months prior to the injury and for some time afterwards. The charge that the place where he was at work was too dark and known to be by defendant in time to have provided light is eliminated from the case in two vital particulars by his testimony. He stated that the windows did not give good light in the basement, that it was only about half light there, and that he could barely see the face of the hatchet and the nail. But he said that he held the nail while he struck the first blow to set it, and that it was at the second blow that it flew out and injured him and that at that stroke he "struck a square blow." From this it is apparent that the question of light had no connection with the accident, since the stroke he made was a proper one, and one that the darkness did not affect and that light could not have bettered. Again, on the question of the place being too dark, he testified that lanterns had been provided and that he had used them at other times when it was dark. He then stated in response to a question by his attorney that he could not have used a lantern to any advantage in laying the floor and that he "intended to go ahead as best he could without a lantern, and that he was afraid to use it--may be upset." He then stated on re-cross examination as follows:

"Q. What would have been the matter with your setting the lantern down somewhere? A. Well, I had to move the lantern every ten or fifteen minutes, you see, to give me light to the place where I was working. Q. Well, then, you just concluded to take the risk of it; you wouldn't get a lantern? A. I would not get a lantern because I like to get along without."

It is thus apparent that even if the darkness had been the cause of a misstroke at the nail, it was the result of his own negligence in not doing as he had at other times in the same place: "used a lantern in dark places."

The only other charge of negligence is that the nail was an unsafe instrument furnished by defendant. We regard it as without merit. It does not appear that any different nail was demanded, or that any complaint was made of this particular kind. Plaintiff stated that he was not under the immediate supervision of any one. He had simply been directed to lay the floor. That the nail was a steel wire nail (as distinguished from a cut iron nail) covered with cement and was considered an improved nail; that he had used them many times before the accident in working around the factory--had driven "about a thousand" of them. That he worked there, after being off five days on account of the accident for a month and used the same nails at various places where he had need of them. That he had been at work on this floor with the same nails for about...