Baltimore & Ohio Southwestern Railroad Company v. Walker
| Decision Date | 28 April 1908 |
| Docket Number | 6,352 |
| Citation | 84 N.E. 730,41 Ind.App. 588 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY v. WALKER |
From Orange Circuit Court; Asa Elliott, Special Judge.
Action by William E. Walker against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff defendant appeals.
Affirmed.
W. R Gardiner, C. K. Tharp, C. G. Gardiner and Edward Barton, for appellant.
Alvin Padgett, A. J. Padgett, D. H. Padgett and Perry McCart, for appellee.
The appellee was plaintiff below. The material allegations of his complaint are as follows: That on April 18, 1905, plaintiff was engaged in the service of the defendant as a section man, working in what was known as the "extra gang," and under the supervision and direction of a foreman of defendant, to whose orders and directions he was bound to, and did conform; that there were several other employes of defendant working with the plaintiff in said extra gang and subject to the orders of said foreman; that at the same time the defendant had another foreman and gang of workmen, constituting what was known as the "regular section gang," and that on said day both of said gangs of employes were engaged in taking out and replacing a frog, constituting a part of the defendant's track, and that they were doing said work under the orders and supervision of said defendant's foreman; that plaintiff had never been employed in such line of work prior to the happening of the grievances hereinafter complained of; that while engaged in said work plaintiff and said other workmen were doing the work of the defendant, and were in the line of their duty; that while prosecuting said work one of said foremen ordered one of the persons working at said undertaking to go to the tool-house of defendant and get a chisel to cut the bolts holding the old frog in place; that said employe, in obedience to said order and directions, went to the tool-house and got a chisel; that said employe held the chisel on one of said bolts and another of said employes began to strike on the head of the chisel with a heavy hammer; that at said time plaintiff was standing a few feet from where said bolts were being cut, and was required by the defendant and the foreman, Murphy, to remain in the immediate vicinity of said work, and engaged in the line of his duty, and the men holding the chisel and wielding the hammer were at that time engaged in the line of their duty as employes of the defendant; that while thus engaged a piece of the metal of which the chisel was made flew off of the same and struck plaintiff in the left eye and destroyed the sight thereof; that plaintiff's said injury was caused by reason of the negligence and carelessness of the defendant, in this: That said defendant furnished said chisel for the use of its employes while in its employ; that it carelessly and negligently suffered said chisel to be and become old, worn and defective, and the head thereof battered and slivered, and to become thereby dangerous and liable to throw off slivers; that until after plaintiff's said injury he had never seen said chisel, and that he had no opportunity to see and observe the same while working to help remove said frog and before his said injury; that defendant, by and through its foreman and officers, knew, or by the exercise of reasonable diligence, might have known, of the defective condition of said chisel at and before said injury; that plaintiff's injury was caused wholly by reason of the defendant's carelessness and negligence in permitting said chisel to become defective as alleged, and to be used while in such defective condition, and that his said injury was received without any fault or carelessness on his part contributing to his injury; that by reason of said injury the sight of plaintiff's eye was entirely destroyed, and he was made thereby to suffer great pain and loss of time from his employment, all to his damage in the sum of $ 10,000. Appellant's demurrer for want of facts to the complaint was overruled and an answer in general denial filed. The action was begun in the Lawrence Circuit Court, and upon change of venue was tried in the Orange Circuit Court, in which court a jury returned a verdict in favor of appellee for $ 3,000, on which judgment was rendered.
The errors assigned are the action of the court in overruling appellant's demurrer to the amended complaint, and in overruling appellant's motion for a new trial.
The objections made to the sufficiency of the complaint are that the condition of the chisel was obvious to appellee, who was a mature man with good eyesight; that to look at it would be to inspect it, and that such inspection would reveal its condition as readily to one person as another; that the risk was incident to the service, and was assumed; that the selection of the chisel, if negligent, was the negligence of a co-employe; that the averments show that the appellee realized the danger, and that though an opportunity existed for him to avoid it he did not attempt to do so. The first and second objections to the complaint are met by the allegation that appellee never saw the chisel until after his injury, and had no opportunity or occasion to examine or observe its condition; that at the time of plaintiff's injury, by the direction of Murphy, the foreman, the bolts were being cut by one of the employe's holding the sharp edge of the chisel on said bolts, by means of a short handle thereon, and another employe's striking powerful blows on the head thereof with a heavy sledgehammer, thus showing the chisel was near the ground. Whether appelle could have seen the chisel, depended upon the positions of the workmen and the chisel at the time. He was not called upon to use or inspect the chisel, and his attention was not called to it.
It is the duty of the master to furnish an employe reasonably safe tools with which to perform his work. This requirement applies to the safety, not only of an employe using the tool, but to those whose duties require them to be within the risk of injury arising from any defect therein. An employe assumes only the risks ordinarily incident to his employment of which he has knowledge, and such as by the exercise of ordinary diligence could be known to him. Assumption of risk implies knowledge of danger. Appellee was not assisting in the work in which the chisel was being used.
The foreman is a fellow servant, and for his negligence in discharging his duty as foreman, when such negligence is alone the cause of injury, the master is not responsible, but the duty of the master to furnish reasonably safe tools is a continuing one. In the selection of the chisel in question the foreman, although a fellow servant, was acting in place of the master. It was his duty to warn appellant's servants of the defective condition of the chisel. Ohio, etc., R. Co. v. Stein (1894), 140 Ind. 61, 39 N.E. 246; Mitchell v. Robinson (1881), 80 Ind. 281, 41 Am. Rep. 812; Nall v. Louisville, etc., R. Co. (1891), 129 Ind. 260, 28 N.E. 183; Taylor v. Evansville, etc., R. Co. (1889), 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. 372, 22 N.E. 876; Blondin v. Oolitic Quarry Co. (1894), 11 Ind.App. 395, 37 N.E. 812; Louisville, etc., R. Co. v. Berkey (1894), 136 Ind. 181, 35 N.E. 3. Having no reason to anticipate injury because of lack of knowledge of the condition of the chisel, there was no occasion to attempt to avoid it.
The court refused to give instructions one, two, three and four requested by appellant. The second instruction would have told the jury that a railroad company is not required to inspect simple tools like a chisel used to cut bolts and nuts, the condition and nature of which is as obvious to one person as another. This instruction might have been proper if the injured party had knowledge, or an opportunity of knowledge, of the condition of the chisel.
The third instruction was correctly refused, because it entirely ignored the knowledge or want of knowledge of appellee as to the condition of the chisel, it being the duty of appellant to furnish reasonably safe tools.
The fourth instruction was, in effect, that if the jury should find from the evidence that the condition of the chisel was obvious, and that its condition might have been seen by plaintiff, if he had looked toward it, then he is held to have seen it, whether in fact he did see it or not, and if under such circumstances he stood by while the chisel was being used, with his face toward it, then his failure to turn his face away from the work being done would be contributory negligence, and he cannot recover. In view of the fact that appellee testified that he had never seen the chisel before the accident, and there is no evidence to the contrary, and that he was not taking any part in its use, and that contributory negligence will not be presumed, the instruction, although stated conditionally, was not applicable to the evidence.
Said first instruction, which would have peremptorily instructed the jury to find for the defendant, was properly refused, because the facts presented were properly for the determination of the jury.
Instruction eight, refused, was substantially given in instruction seven and one-half.
After having read to the jury certain instructions requested by the appellant, the court proceeded: "Gentlemen of the jury: The law imposes upon me the duty of instructing you what the law is which governs this case." It is claimed in behalf of appellant that, after having read to the jury the instructions requested, this introductory statement, followed by instructions given upon the judge's own motion,...
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